1
CHAPTER ONE................................................................................................................................................................2
AN INTRODUCTION TO JUDICIAL DECISION MAKING..................................................................................................2
I. WHAT THIS BOOK IS ABOUT......................................................................................................................................2
II. BROWN V. BOARD OF EDUCATION ..........................................................................................................................4
II. BROWN AS LAW......................................................................................................................................................12
A. THE MEANING OF THE TEXT .....................................................................................................................................12
B. THE INTENTIONS OF THE FRAMING GENERATION ..........................................................................................................13
C. PRECEDENT ...........................................................................................................................................................16
D. AND MORE . . .......................................................................................................................................................19
IV. BROWN AS IDEOLOGY...........................................................................................................................................20
V. BROWN AND AGENDA SETTING.............................................................................................................................28
A. THE NAACP’S LITIGATION CAMPAIGN.......................................................................................................................28
B. AGENDA-SETTING, COURTS AND THE LAW ..................................................................................................................31
1. The Agenda Setting Capacity of Courts.......................................................................................................31
a. Ducking Issues .........................................................................................................................................31
b. Certiorari, and courts of discretionary review .............................................................................................32
c. Signaling to Litigants.................................................................................................................................33
d. Configuring Litigation ...............................................................................................................................33
2. The Power of Litigants.................................................................................................................................34
3. The Nature of a Legal Case .........................................................................................................................34
4. The Symbiotic Nature of Courts and Cases .................................................................................................35
VI. INFORMATIONAL AND INSTITUTIONAL CONSTRAINTS IN BROWN.....................................................................36
VII. DECISIONMAKING ON A COLLEGIAL COURT........................................................................................................42
A. BROWN I..............................................................................................................................................................43
B. BROWN II .............................................................................................................................................................45
VIII. JUDICIAL DECISIONMAKING IN A SYSTEM OF SEPARATION OF POWERS..........................................................47
A. THE JUDICIAL BRANCH.............................................................................................................................................48
B. THE OTHER BRANCHES............................................................................................................................................50
C. THE COURT AND THE EXECUTIVE BRANCH....................................................................................................................54
1. Giving the Truman Administration the Cold Shoulder.................................................................................56
2. About-Face: Wanting the Administration on Record ..................................................................................56
3. ‘The Eisenhower Administration’s (Reluctant) Participation in Brown .......................................................57
D. THE THREE-BRANCH SOLUTION ................................................................................................................................59
IX. PUBLIC OPINION AND JUDICIAL DECISIONMAKING .............................................................................................61
A. BROWN AND PUBLIC OPINION ..................................................................................................................................63
B. FROM BROWN TO THE PRESENT................................................................................................................................65
1. Limits on the use of race: the 1970s............................................................................................................67
2. The 1990s: school desegregation and affirmative action in higher education diverge?.............................69
2
CHAPTER ONE
AN INTRODUCTION TO JUDICIAL DECISION MAKING
I. What this Book is About
Judges are some of the most important decision makers in the American system of
government. They aren’t the only ones, of course. Governance in the United States is a complex
affair, involving many officials, from all three branches of government, and at all levels of
government, from the state and local to the national. Especially in law schools, there is a concern
that too much attention has been paid to judges, at the expense of their colleagues in the
legislature, or in executive and administrative agencies. Still, there is a reason for the attention to
judges. Judges make much of the law in the United States. Even when judges are interpreting
legislative statutes or executive regulations, it is those judicial decisions that determine
ultimately how those statutes and regulations will apply.
Indeed, there is some irony about the current view in law schools that too much attention
is played to judges, because in truth we know remarkably little about how judges reach their
decisions, or about the factors that influence the content of judge-made law. We obviously are
aware of the part of judging that is transparent, the briefs that get filed, the opinions that judges
hand down. But a great deal of what judges do is opaque, and difficult to study.
When lawyers study law, they might be said to an “internal” view of the law, which is to
say they study the opinions judges hand down, trying to understand how those decisions follow
from prior decisions and influence later ones. Law tends to be viewed as a closed or autonomous
system, about which one needed to know little except what was contained in the legal texts
themselves. See Richard Posner, The Decline of Law as an Autonomous Discipline: 1962-1987,
100 Harv. L. Rev. 761, 762 (1987). If one is curious about, say, affirmative action in education,
one could look at the main legal texts – such as the Supreme Court’s 2003 decisions in the
University of Michigan affirmative action cases, Grutter v. Bollinger, 539 U.S. 306 (2003), and
Gratz v. Bollinger, 539 U.S. 244 (2003) – and analyze the extent to which Grutter and Gratz
rested on prior precedents, how the two cases could be read together, and how they evolved into
the set of rules that governed affirmative action in university admissions. (Taken together,
Grutter and Gratz basically said it was okay to take race into account in university admissions to
ensure a “diverse” student body, so long as it was just one of many factors, and each applicant
was considered on a bundle of his or her own characteristics.) And if one wanted to understand
whether those rules were altered at all by the 2012 decision in Fisher v. University of Texas, 132
S. Ct. 1536 (2012), one need only read that opinion.
Social scientists look at law and judging in a very different way. Many social scientists
are skeptical that any legal precedent determines the outcome of a case or set of cases, and few
believe that is a complete explanation of how law and legal institutions work. Instead, they focus
on factors outside the law itself that seem to govern judicial decisions, what might be called an
3
“external” perspective. For example, a social scientist might say about the decisions in Grutter
and Gratz that it was all about the preferences of the justices of the Supreme Court who decided
those cases, and that if one focuses on the cases, it is apparent that Justice O’Connor was the
“median” justice of the Court and therefore her preferences determined the result. Then, noting
the somewhat different approach of the Supreme Court in Fisher, a social scientist might point to
the change in membership of the Supreme Court in explaining the differing outcome. Of course,
the identity of the judge is hardly the only external factor that might matter. For example, a
social scientist might also point to changing public opinion about affirmative action as the
explanation for the change.
These differing characterizations are overstated, of course. Any lawyer worth her salt
understands full well that it is more than the legal sources that decides cases, and good social
scientists try to study and understand the role law itself plays in judicial decisionmaking.
Still, it is the case that for many, many years there has been a divide between the legal
and social science students of judging and the law. Good lawyers may be perfectly well aware
that factors beside the texts themselves decide cases, but they aren’t too sure what to do with this
knowledge. Take a trite but telling example: a lawyer would hardly feel comfortable standing
before a trial court in an affirmative action case and saying something like, “everyone knows that
the Grutter and Gratz cases were decided the way they were because of the moderate views of
Justice O’Connor, but she is gone now, so this case should come out differently.” By the same
token, social scientists often want to ignore the internal workings of law, either dubious that they
matter or finding them uninteresting.
The good news is that the divide between social scientists and lawyers is closing. Many
leading law schools have hired social scientists on their faculties, realizing that to understand all
the institutions of American law – not just courts – it helps to have an external perspective as
well. The methodologies of social science – empirical testing, and formal modeling – have
gained a great deal of acceptance in law. Indeed, more and more law professors are using these
tools of external analysis themselves. By the same token, social scientists have come to realize
that if they want to understand how judging and legal institutions work, they need to know
something of law itself.
The premise of this book is that the internal and external views of judicial
decisionmaking not only can be united, but that they must. Unless one is prepared to say that
either view is valueless, then the question is what a shared approach can offer – both to the social
scientist trying to understand judicial behavior, and to the lawyer trying to understand the law.
While many seem skeptical that it is possible to integrate the internal and external perspectives
on law and judging, it is the promise of this book to prove otherwise.
Two general insights animate this book.
First, it is simply impossible for social scientists to study judicial behavior and
decisionmaking in an adequate way without also trying to understand and account for how law
and legal institutions work. Law, in particular, is infinitely richer and more complex than many
social science accounts grasp, and to get a handle on courts, judicial process, and judicial
decisions, it is essential to take account of the texture of the law.
4
Second – and perhaps more important – some aspects of what social scientists have
learned about judicial behavior have a real bearing on the law and legal institutions. To state the
obvious, lawyers adopting strategies to win a case or set of cases, and thereby succeed for a
client – and perhaps change the law in the course of doing so – necessarily profit from
understanding what social scientists can teach about how and why judges actually decide cases.
But something even more fundamental is true. It turns out that the sorts of things social science
teach us about judicial behavior have an enormous influence on the law itself – whether legal
rules are broad or narrow, whether they grant discretion to lower court judges and other actors,
and whether the rules are likely to be implemented or find adherence.
In short, marrying the internal and external perspectives will give us a much richer, fuller,
and more nuanced understanding of what courts and judges do, why they do it, and how to be
successful studying them, or litigating cases in front of them. Here are some examples, just so
that you have a sense of what we mean, what are the kinds of things we will cover here:
*Suppose Jane Doe sues the government arguing it is violating her rights in some way.
And suppose the judge or judges hearing the case believe she is absolutely right. Yet, suppose
further there is a real reason to doubt whether government officials will follow their decision.
What do judges do in these cases? Do they avoid issuing a ruling that will be ignored? And what
should they do?
*When should the law employ a bright line rule that is clear and everyone can follow, but
may be unjust in some circumstances, or when should it adopt a mushier standard that is harder
to follow but if done properly allows for justice in every case? For example, should the law say
“drive at whatever speed is safe?” Or should it set a specific speed limit, even if that means
giving tickets to perfectly safe drivers who have a good reason to rush (like rushing someone to
the hospital)? Is it an acceptable answer that judges do this because their caseload gets too high
to handle each case on its own facts? How about because the judge doesn’t trust the lower court
judges (or other governmental actors, like the police) to do the right thing, and so believes a clear
rule – even if not exactly right – will be easier to monitor?
*Is the law affected by the order in which cases come to judges? Is it possible that if
they’d come in a different order the law would be different? And if there is evidence this occurs,
how should we feel about it, and what might we do about it?
*Sometimes judges have controversial cases, like a person accused of a heinous crime,
whose guilt is uncertain but the community is clamoring for “justice” (i.e., convict him as
quickly as possible). Or, a case asking whether abortion should be legal. What does the evidence
suggest about whether judges listen to public opinion in these cases? When should they? If they
listen in cases in which they should not, is there a way to further insulate them so they can decide
on the law and facts alone? If they don’t listen when they should (should they ever?) how can
they be made to be more responsive?
II. Brown v. Board of Education
There’s a reason a picture is said to be worth 1,000 words. Sometimes the best way to
understand something is by way of example. One of the things we hope you will like about this
5
book is that it is full of examples. Not just judicial decisions, which are common in law school
course materials, but also excerpts from social science studies, charts, graphs, congressional
testimony and much else, even pictures.
This chapter will introduce you to the various themes that we will explore throughout the
remainder of the book. It will give you a sense of the many ways in which internal and external
perspectives on law interact, often in ways that change the law itself, and people’s rights under
that law. The chapter is built around one example – the Supreme Court’s decision in Brown v.
Board of Education, 347 U.S. 483 (1954). As almost everyone surely knows, Brown v. Board of
Education held that it violated the Constitution for governments to have a mandatory system of
racially-segregated schools.
Why Brown?
Brown v. Board of Education has the odd distinction of being an iconic statement of law
that draws virtually no dissent, and is some of the most contested turf in American law and
politics. At the same time, no less.
Consider the confirmation of nominees to the Supreme Court of the United States. It is
inconceivable that anyone could be confirmed to the country’s high bench without expressing
fealty to Brown. And when we test that hypothesis by looking to recent confirmation hearings,
that is precisely what we find. One expects that the more “liberal” nominees (there’s a term we
will explore in some depth) will be simpatico to Brown, such as in this exchange between
Stephen Breyer and Senator Herbert Kohl:
Senator KOHL: …Judge Breyer, I would like to ask you this: In your opinion,
what do you think are the three most important Supreme Court cases of the
20th century? And why?
Judge BREYER: Well, the first is easy. I mean, the first is Brown v. Board.
And why that is so easy is because, to me, it was clear. I mean, you know,
here is the promise in this document, and the promise is the country will be
fair. And they wrote it sometime in the middle, last part of the 18th—you
know, in the 19th century, and then it was not done. How shocking. How
shocking to write a promise like that into the Constitution and it is not done.
And it seems to me that Brown was a decision of courage, in a sense, but the
courage was do what the law says. Read it. That is what it says. We are going
to do it.1
But deeply “conservative” justices, such as Justice Samuel A. Alito, Jr, have shown even more
profound devotion to Brown:
1
The Nomination of Stephen Breyer to be an Associate Justice of the Supreme Court of the United States: Hearing
Before the Sen. Comm. on the Judiciary, 103rd Cong. 64 (1994) (question of Sen. Herbert Kohl to Judge Stephen
Breyer).
6
Senator Durbin: I would ask you at this point—you obviously support Brown
v. Board of Education, do you, and the finding of the Court in that?
Judge ALITO. Certainly, Senator.
Senator DURBIN. Do you believe that the Constitution protects the right of
children in America to be educated in schools that are not segregated?
Judge ALITO. Absolutely, Senator. That was one of the greatest, if not the
single greatest thing that the Supreme Court of the United States has ever
done.2
Yet, consider also the war over Brown that took place when the Supreme Court was
asked, in the 2007 case of Parents Involved in Community Schools v. Seattle School District 1,
551 U.S. 701 (2007), whether school districts could rely on race in assigning students to certain
schools or in allowing them to transfer among schools. The question in that case was whether
primary and secondary school districts could use race as a basis of pupil assignment in order to
avoid existing racial imbalance in the schools that may or may not be the government’s fault –
for example if neighborhoods are racially segregated due to the conduct of private actors and that
influences the composition of student bodies. The case produced five opinions: a plurality
opinion by Chief Justice Roberts and joined (in its central aspects) by Justices Scalia, Thomas,
and Alito; a concurring opinion written by Justice Kennedy; a dissenting opinion written by
Justice Stevens; and a dissenting opinion by Justice Breyer, joined by Justices Stevens, Souter
and Ginsburg. Justices in the majority voted to invalidate the district’s assignment plan, while
those in dissent concluded that it was constitutional.
Each opinion claimed Brown supported its position, but each presented very different
visions of what Brown was. Note that justices who expressed fealty to Brown in their
confirmation hearings sat on both sides of Parents Involved. As the Chief Justice put it: “The
parties and their amici debate which side is more faithful to the heritage of Brown.” 551 U.S.
701, 747. Those justices opposed to race-based school assignment insisted the legacy of Brown
was a “color-blind Constitution,” 551 U.S. at 772 (Thomas, J., concurring), meaning the one
thing government could never do was make decisions based on race, absent some extraordinarily
compelling reason, even if it seemed the government was trying to do good and not hurt anyone.
As the Chief Justice’s opinion for a plurality of the justices (including Justice Alito) said:
“Before Brown, schoolchildren were told where they could and could not go
to school based on the color of their skin. The school districts in these cases
have not carried the heavy burden of demonstrating that we should allow this
once again—even for very different reasons.”
551 U.S. at 747. Justice Thomas was even more strident and direct:
2
The Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court of the United States:
Hearing Before the Sen. Comm. on the Judiciary, 109th Cong. 452 (2010) (question of Sen. Richard Durbin to thenJudge
Samuel A. Alito, Jr.).
7
“Disfavoring a color blind interpretation of the Constitution, the dissent
would give school boards a free hand to make decisions on the basis of race—
an approach reminiscent of that advocated by the segregationists in [Brown].
This approach is just as wrong today as it was a half-century ago. The
Constitution and our cases require us to be much more demanding before
permitting local school boards to make decisions based on race.”
551 U.S. at 748 (Thomas, J., concurring). But those in favor of the school district’s plan
responded that Brown was about the use of race to subjugate racial minorities, and did not apply
when the government was trying to help them – the same issue as in the affirmative action cases.
Justice Breyer’s dissent stressed the point that it was not easy to tell whether a school district was
remedying segregation that was “de jure” (i.e. intentional as a mater of law) or “de facto” (i.e.
the product of social forces). But he also challenged the majority justices’ image of Brown itself:
The plurality cites in support those who argued in Brown against segregation,
and Justice Thomas likens the approach that I have taken to that of
segregation’s defenders. See ante, at 39–41 (plurality opinion) (comparing
Jim Crow segregation to Seattle and Louisville’s integration polices); ante, at
28–32 (Thomas, J., concurring). But segregation policies did not simply tell
schoolchildren “where they could and could not go to school based on the
color of their skin,” ante, at 40 (plurality opinion); they perpetuated a caste
system rooted in the institutions of slavery and 80 years of legalized
subordination. The lesson of history, see ante, at 39 (plurality opinion), is not
that efforts to continue racial segregation are constitutionally
indistinguishable from efforts to achieve racial integration. Indeed, it is a
cruel distortion of history to compare Topeka, Kansas, in the 1950’s to
Louisville and Seattle in the modern day—to equate the plight of Linda
Brown (who was ordered to attend a Jim Crow school) to the circumstances of
Joshua McDonald (whose request to transfer to a school closer to home was
initially declined). 551 U.S. at ___.
To similar effect was Justice Stevens’ short solo dissent:
“The Chief Justice fails to note that it was only black schoolchildren who
were so ordered; indeed, the history books do not tell stories of white children
struggling to attend black schools. In this and other ways, The Chief Justice
rewrites the history of one of this Court’s most important decisions.” 551 U.S.
at 799
The disagreement was both intense and unfriendly. In his dissent, Justice Stevens took
the unusual step of announcing that “no Member of the Court that I joined in 1975 would have
agreed with today’s decision.” 551 U.S. at 803.
And so the question: What was Brown v. Board of Education? What did it hold? That
turns out to be a surprisingly complex question, albeit one of huge practical importance and
strong emotional valence. Nothing we are about to say will answer the question definitively. To
the contrary, it will demonstrate how a variety of factors not usually the target of legal analysis
8
give us very different ways to understand what Brown was about, what people thought it
resolved, and why. These materials will introduce you to the themes we’ll cover right throughout
this course.
What makes the Brown decision particularly apt to demonstrate the themes of the course
is that we know a great deal about how the Brown case was decided; we have access to many
archival sources, including the papers of the Supreme Court justices themselves, revealing their
internal deliberations. This would not be true of a more recent case, and perhaps not of a less
iconic one. By looking at these sources, we can see the various internal and external influences
on the justices that had a hand in shaping the outcome of the case – and also how people’s rights
were or were not protected by that rule.
You might object right off the bat that Brown is a poor exemplar precisely because it was
such iconic case. Yes, external factors might have influenced the justices in Brown, but can we
generalize about how these factors operate in more common and less iconic cases? Doesn’t
Brown’s very specialness detract from its usefulness as a learning device?
Bravo for you if this question crossed your mind. One of the key lessons of this book,
which is that we must be careful about the sort of inferences and conclusions we can draw from
data. Throughout the book we will use cases like Brown as exemplars, but we’ll also deal with
this problem the way social scientists do, by using large data sets (or studies that relied on large
data sets) and inferring from that data as best as we are able, what was going on. Still, it is useful
and instructive to begin with a very tangible example, where we can know – as well as one can
know anything, because it is very difficult to know much for certain – that the sorts of factors we
study in this book really do matter to real judges and really do influence the development of the
law.
Brown v. Board of Education
347 U.S. 483 (1954)
CHIEF JUSTICE Warren
These cases come to us from the States of Kansas, South Carolina, Virginia, and
Delaware. They are premised on different facts and different local conditions, but a common
legal question justifies their consideration together in this consolidated opinion.
In each of the cases, minors of the Negro race, through their legal representatives, seek
the aid of the courts in obtaining admission to the public schools of their community on a
nonsegregated basis. In each instance, they have been denied admission to schools attended by
white children under laws requiring or permitting segregation according to race. This segregation
was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth
Amendment. In each of the cases other than the Delaware case, a three-judge federal district
court denied relief to the plaintiffs on the so-called “separate but equal” doctrine announced by
this Court in Plessy v. Ferguson, 163 U.S. 537. Under that doctrine, equality of treatment is
accorded when the races are provided substantially equal facilities, even though these facilities
be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but
9
ordered that the plaintiffs be admitted to the white schools because of their superiority to the
Negro schools.
The plaintiffs contend that segregated public schools are not “equal” and cannot be made
“equal,” and that hence they are deprived of the equal protection of the laws. . . . Argument was
heard in the 1952 Term, and reargument was heard this Term on certain questions propounded
by the Court.
Reargument was largely devoted to the circumstances surrounding the adoption of the
Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in
Congress, ratification by the states, then existing practices in racial segregation, and the views of
proponents and opponents of the Amendment. This discussion and our own investigation
convince us that, although these sources cast some light, it is not enough to resolve the problem
with which we are faced. At best, they are inconclusive. The most avid proponents of the postWar
Amendments undoubtedly intended them to remove all legal distinctions among “all
persons born or naturalized in the United States.” Their opponents, just as certainly, were
antagonistic to both the letter and the spirit of the Amendments and wished them to have the
most limited effect. What others in Congress and the state legislatures had in mind cannot be
determined with any degree of certainty.
An additional reason for the inconclusive nature of the Amendment’s history, with
respect to segregated schools, is the status of public education at that time. In the South, the
movement toward free common schools, supported by general taxation, had not yet taken hold.
Education of white children was largely in the hands of private groups. Education of Negroes
was almost nonexistent, and practically all of the race were illiterate. In fact, any education of
Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved
outstanding success in the arts and sciences as well as in the business and professional world. It
is true that public school education at the time of the Amendment had advanced further in the
North, but the effect of the Amendment on Northern States was generally ignored in the
congressional debates. Even in the North, the conditions of public education did not approximate
those existing today. The curriculum was usually rudimentary; ungraded schools were common
in rural areas; the school term was but three months a year in many states; and compulsory
school attendance was virtually unknown. As a consequence, it is not surprising that there should
be so little in the history of the Fourteenth Amendment relating to its intended effect on public
education.
In the first cases in this Court construing the Fourteenth Amendment, decided shortly
after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against
the Negro race. The doctrine of “separate but equal” did not make its appearance in this court
until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation.
American courts have since labored with the doctrine for over half a century. In this Court, there
have been six cases involving the “separate but equal” doctrine in the field of public education.
In Cumming v. Board of Education of Richmond County, 175 U.S. 528, and Gong Lum v. Rice,
275 U.S. 78, the validity of the doctrine itself was not challenged. In more recent cases, all on the
graduate school level, inequality was found in that specific benefits enjoyed by white students
were denied to Negro students of the same educational qualifications. State of Missouri ex rel.
Gaines v. Canada, 305 U.S. 337; Sipuel v. Board of Regents of University of Oklahoma, 332
10
U.S. 631; Sweatt v. Painter, 339 U.S. 629; McLaurin v. Oklahoma State Regents, 339 U.S. 637.
In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro
plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question
whether Plessy v. Ferguson should be held inapplicable to public education.
In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter,
there are findings below that the Negro and white schools involved have been equalized, or are
being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and
other “tangible” factors. Our decision, therefore, cannot turn on merely a comparison of these
tangible factors in the Negro and white schools involved in each of the cases. We must look
instead to the effect of segregation itself on public education.
In approaching this problem, we cannot turn the clock back to 1868 when the
Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must
consider public education in the light of its full development and its present place in American
life throughout the Nation. Only in this way can it be determined if segregation in public schools
deprives these plaintiffs of the equal protection of the laws.
Today, education is perhaps the most important function of state and local governments.
Compulsory school attendance laws and the great expenditures for education both demonstrate
our recognition of the importance of education to our democratic society. It is required in the
performance of our most basic public responsibilities, even service in the armed forces. It is the
very foundation of good citizenship. Today it is a principal instrument in awakening the child to
cultural values, in preparing him for later professional training, and in helping him to adjust
normally to his environment. In these days, it is doubtful that any child may reasonably be
expected to succeed in life if he is denied the opportunity of an education. Such an opportunity,
where the state has undertaken to provide it, is a right which must be made available to all on
equal terms.
We come then to the question presented: Does segregation of children in public schools
solely on the basis of race, even though the physical facilities and other “tangible” factors may
be equal, deprive the children of the minority group of equal educational opportunities? We
believe that it does.
In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not
provide them equal educational opportunities, this Court relied in large part on “those qualities
which are incapable of objective measurement but which make for greatness in a law school.” In
McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a
white graduate school be treated like all other students, again resorted to intangible
considerations: “. . . his ability to study, to engage in discussions and exchange views with other
students, and, in general, to learn his profession.” Such considerations apply with added force to
children in grade and high schools. To separate them from others of similar age and
qualifications solely because of their race generates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a way unlikely ever to be undone. The
effect of this separation on their educational opportunities was well stated by a finding in the
Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:
11
Segregation of white and colored children in public schools has a detrimental
effect upon the colored children. The impact is greater when it has the
sanction of the law; for the policy of separating the races is usually
interpreted as denoting the inferiority of the negro group. A sense of
inferiority affects the motivation of a child to learn. Segregation with the
sanction of law, therefore, has a tendency to (retard) the educational and
mental development of Negro children and to deprive them of some of the
benefits they would receive in a racial(ly) integrated school system.
Whatever may have been the extent of psychological knowledge at the time of Plessy v.
Ferguson, this finding is amply supported by modern authority.3
Any language in Plessy v.
Ferguson contrary to this finding is rejected.
We conclude that in the field of public education the doctrine of “separate but equal” has
no place. Separate educational facilities are inherently unequal. Therefore, we hold that the
plaintiffs and others similarly situated for whom the actions have been brought are, by reason of
the segregation complained of, deprived of the equal protection of the laws guaranteed by the
Fourteenth Amendment. . . .
* * *
We have edited the Brown decision very lightly. Except for a bunch of footnotes, and
some material about the specific disposition of the cases – which we are saving for later
discussion – you have most of the Chief Justice’s reasoning. Throughout the book we will follow
the common practice of editing cases heavily, so that you need only focus on what is most
germane. But we thought it would be useful this once to see a Supreme Court decision in almost
all its glory. Besides, in this case the Chief Justice made it easy for us. He purposely wrote the
opinion to a length he felt could be published on a page of most newspapers – and it was in fact
widely disseminated in that way.4
And it was indeed carried in full in many newspapers.
Beginning with the text of the opinion, and moving out from there, let’s try to understand
what Brown held, and what it means for us today.
3
FN11. K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House
Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI;
Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26
J.Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal
Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and
National Welfare (MacIver, ed., 1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see
generally Myrdal, An American Dilemma (1944).
4
See RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA’S
STRUGGLE FOR EQUALITY AND JUSTICE 714 (2004); see also EARL WARREN, THE MEMOIRS OF CHIEF JUSTICE EARL
WARREN 3 (1977) (noting “[i]t was not a long opinion, for I had written it so it could be published in the daily press
throughout the nation without taking too much space”).
12
III. Brown as Law
The most obvious way to begin to understand Brown is from the internal perspective, as
law. The question we ask in this section is, was Brown decided “according to law”? You might
think that a lunatic question. We’ve already told you that respectable lawyers agree Brown was
rightly decided.
What’s true today wasn’t true in 1954, however. Brown engendered violent opposition.
Much of that, of course, was over the outcome, without much attention to the legal reasoning.
And people who don’t like the outcome of a legal case are likely to argue that it was wrongly
decided as a matter of law. Still, it might be instructive to see what some of Brown’s most highprofile
opponents had to say. It may seem heretical to suggest this today, but viewed in the
context of their time, those opponents made some valid points. To be clear, we (the authors) are
unequivocal that Brown was the right decision at the right time. But explaining why is a more
difficult endeavor.
In 1956 the vast majority of Southern members of Congress signed on to what became
known as “The Southern Manifesto.” 102 Cong. Rec. H3948, 4004 (Mar. 12, 1956). The
Manifesto was published at the beginning of the period of “massive resistance,” during which
many Southern leaders did what they could to obstruct the orders of courts to desegregate. The
Manifesto began angrily:
The unwarranted decision of the Supreme Court in the public school cases is
now bearing the fruit always produced when men substitute naked power for
established law . . .
We regard the decision of the Supreme Court in the school cases as clear
abuse of judicial power. It climaxes a trend in the Federal judiciary
undertaking to legislate, in derogation of the authority of Congress, and to
encroach upon the reserved rights of the states and the people.5
But though they were angry, and although there were many bigots among them, the signers of
the Southern Manifesto also included among them some highly regarded constitutional scholars.
Their argument was framed along rather traditional means of constitutional interpretation. And it
is that interpretation we will examine, asking whether Brown was necessarily rightly decided in
these strictly legal terms.
A. The Meaning of the Text
The plaintiffs’ claims in Brown (and the accompanying cases) was governed by the
Fourteenth Amendment to the United States Constitution, which provides in relevant part: “. . .
nor shall any state . . . deny to any person . . . the equal protection of the laws.”
5
102 Cong. Rec. H3948, 4004 (Mar. 12, 1956).
13
Here is what the Manifesto authors had to say:
The original Constitution does not mention education. Neither does the
Fourteenth Amendment nor any other amendment.6
Does the argument that the Amendment doesn’t mention education specifically, standing
alone, resolve the question the Brown Court took up in any way? Justice Robert H. Jackson
didn’t think so. In an opinion he drafted to be published alongside the majority opinion in Brown
– what we call a “concurring” opinion because he agreed with the outcome but has somewhat
different reasons – Justice Jackson said of the language of the Fourteenth Amendment: “they are
sweeping and majestic generalities which standing alone can be read to require a full and equal
racial partnership.” Bernard Schwartz, Chief Justice Rehnquist, Justice Jackson, and the Brown
Case, 1988 Sup. Ct. Rev. 245, 257 (1988). (Justice Jackson never published the concurrence he
drafted, for reasons we will explain shortly.)
B. The Intentions of the Framing Generation
When it comes to interpreting most texts, not only those written in “sweeping and
majestic generalities” like the Fourteenth Amendment, we often have to move beyond what the
words themselves say. For example, does it deny the “equal protection of the laws” to require
people to be 16 years of age to get drivers’ licenses, or to be 18 to vote? What about 15 year olds
who are good drivers (let alone 40 year olds who are not), or 17 year olds who are especially
wise in civic affairs (as opposed to many older people who are not)? Justice Jackson is right:
“Equal protection of the laws” is stated with sufficient generality that we need some way to
know what it means in the context of real cases.
One of the classic ways to know determine constitutional is to seek guidance from the
thoughts and writings of those who wrote it, or the generation that ratified it. For some people,
the text and original meaning is all we should consult when interpreting the Constitution; these
people call themselves “originalists.” There are many varieties of originalism, but the most
commonly accepted today is a form of originalism that asks: “what was the broadly accepted
public meaning of this part of the Constitution, as applied to the problem before us now, at the
time the Constitution was adopted.” Oftentimes, answering that question as it applies to modern
problems is not easy. But sometimes the originalist approach is extremely revealing.
Here is what the authors of the Southern Manifesto had to say about the original meaning
of the Fourteenth Amendment:
The debates preceding the submission of the Fourteenth Amendment clearly
show that there was no intent that it should affect the systems of education
maintained by the states.
6
102 Cong. Rec. H3948, 4004 (Mar. 12, 1956).
14
The very Congress which proposed the amendment subsequently provided for
segregated schools in the District of Columbia.
Then the amendment was adopted in 1868, there were thirty-seven states of
the Union. Every one of the twenty-six states that had any substantial racial
differences among its people either approved the operation of segregated
schools already in existence or subsequently established such schools by
action of the same law-making body which considered the Fourteenth
Amendment.7
When combined with their textual argument, this line of reasoning begins to seem pretty
damning of any interpretation that the Amendment requires school desegregation, does it not?
Remember what Justice Jackson said about the text? He followed it by saying: “‘If we turn from
words to deeds as evidence of purpose, there was ‘nothing to show that the Congress which
submitted these Amendments understood or intended to prohibit the practice here in question.’”
Bernard Schwartz, Chief Justice Rehnquist, Justice Jackson, and the Brown Case, 1988 Sup. Ct.
Rev. 245, 257 (1988) (quoting Memorandum by Mr. Justice Jackson (Mar. 15, 1954) (Brown
file, Robert H. Jackson Papers, Library of Congress)).
And, in truth, most constitutional interpreters agree that the ratifying generation was
pretty clear – by actions if not by words – that segregated education was not condemned by
adoption of the Fourteenth Amendment. There’s one notable exception. Professor Michael
McConnell is a highly-respected conservative scholar (and a former federal judge). He
developed an elaborate argument that the common wisdom on the framing era intentions
regarding segregated education is wrong. Michael W. McConnell, Originalism and the
Desegregation Decisions, 81 Va. L.Rev. 947 (1995). He reaches that conclusion by examining in
minute detail the congressional debates over the Civil Rights Act of 1875, which prohibits
discrimination on the basis of race in “the full and equal enjoyment of the accommodations,
advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and
other places of public amusement.” Ch. 114, §1, 18 Stat. 335, 336 (1875). You will note instantly
that public education is not on that list – seemingly a real problem for Professor McConnell. But
his argument is more nuanced than this. The legislation that became the Civil Rights Act of 1875
was debated over a long period of time, and many votes were taken, including on the question of
segregated schools. Professor McConnell analyzes those votes, and the debates, and concludes
that, had the Brown Court “turn[ed] the clock back” to 1875, it might have discovered strong
support for its holding” that school segregation is inconsistent the Fourteenth Amendment.
McConnell, supra, at 1140. He points out those votes were cast by many people who were
involved in drafting the Fourteenth Amendment, so they should know. And he shows that many
of the arguments in favor of desegregating schools sounded explicitly in Fourteenth Amendment
terms. According to Professor McConnell, the historical record demonstrates that a “substantial
majority of political leaders who supported the Amendment” believed that it did, in fact, outlaw
school desegregation. McConnell, supra, at 953.
7
102 Cong. Rec. H3948, 4004 (Mar. 12, 1956).
15
This is a clever argument. We will let you decide if you buy it. In doing that, here’s an
excerpt from a response by Professor Michael Klarman, a law professor and historian who has
spent his career studying the history of race in America, and who does not buy it:
McConnell’s effort to justify Brown on originalist grounds fails for four
independent reasons. First and foremost, McConnell neglects sufficiently to
consider the political and social context in which the Fourteenth Amendment
was drafted and ratified. It is inconceivable that most—indeed very many—
Americans in 1866-68 would have endorsed a constitutional amendment to
forbid public school segregation. McConnell focuses excessively on what the
Fourteenth Amendment must have meant, given the conceptual legal
apparatus with which the Republicans approached issues of racial equality,
and insufficiently on the practical reality that racial mores in most of the
country in the mid-1860s were hostile to school desegregation. Second,
McConnell never adequately defends his particular brand of originalism—that
the meaning of the Fourteenth Amendment reposes in the intentions of its
congressional drafters, rather than in those of its state legislative ratifiers (or
of either’s constituents, manifesting their preferences at the polls). Thus he
fails to show why opposition to school segregation as manifested in
congressional debates on the 1875 CRA should count more heavily in the
originalist calculus than does popular hostility toward school desegregation as
manifested in the overwhelming repudiation of the Republican Party in the
1874 congressional elections. Third, McConnell’s argument relies entirely
upon congressional debates occurring between 1872 and 1874. He pays
insufficient attention to the possibility that civil rights sentiment changed
dramatically between 1866 and 1872-74 and thus that the congressional
debates on the 1875 CRA might constitute unreliable evidence of what
congressmen intended when they drafted the Fourteenth Amendment. Fourth
and finally, McConnell exaggerates the extent to which congressmen who
supported the schools provision of the civil rights bill in 1874 understood its
“full and equal enjoyment” language to require desegregation, as opposed to
simply prohibiting exclusion of blacks altogether from public education.8
Do you find one or the other approach more persuasive?
In any event, many people – including some originalists, and the Supreme Court in
Brown – have concluded that the very generality of the equal protection clause is sufficient to
encompass and support a challenge to segregated education. The framers may not have planned
for nor specifically contemplated desegregated schools, but neither did they prohibit them. They
left it, so the argument goes, to future generations to decide. Of course, this argument is tricky
too. Had a future generation actually decided that state-segregated schools were
unconstitutional? Now, certainly. In 1954? Not so clear.
8
Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 Va.
L. Rev. 1881, 1884 (1995).
16
C. Precedent
You don’t have to be an originalist and let matters rest there. (In fairness, though, you do
then have to develop an interpretive methodology of your own then that remains true to the idea
of a written Constitution and constrains constitutional interpreters –including, but not limited to,
judges – from claiing the Constitution means whatever you want it to mean, today.)
The next thing constitutional interpreters often look to is precedents. Many years passed
between the adoption of the Fourteenth Amendment in 1868, and 1954, when Brown was
decided. And as you might imagine, in the interim people had something to say about what the
Fourteenth Amendment meant regarding education and segregation. Precedents can take many
forms, including actions by Congress, the President, or the state governments. Obviously, one of
the forms of precedent judges tend to take most seriously are judicial precedents.
Here is what the Manifesto had to say about precedent:
As admitted by the Supreme Court in the public school case (Brown v. Board
of Education), the doctrine of separate but equal schools “apparently
originated in Roberts v. City of Boston (1849), upholding school segregation
against attack as being violative of a state constitutional guarantee of
equality.” This constitutional doctrine began in the North-not in the Southand
it was followed not only in Massachusetts but in Connecticut, New York,
Illinois, Indiana, Michigan, Minnesota, New Jersey, Ohio, Pennsylvania and
other northern states until they, exercising their rights as states through the
constitutional processes of local self-government, changed their school
systems.
In the case of Plessy v. Ferguson in 1896 the Supreme Court expressly
declared that under the Fourteenth Amendment no person was denied any of
his rights if the states provided separate but equal public facilities. This
decision has been followed in many other cases. It is notable that the Supreme
Court, speaking through Chief Justice Taft, a former President of the United
States, unanimously declared in 1927 in Lum v. Rice that the “separate but
equal" principle is” * * * within the discretion of the state in regulating its
public schools and does not conflict with the Fourteenth Amendment.”
This interpretation, restated time and again, became a part of the life of the
people of many of the states and confirmed their habits, customs, traditions
and way of life. It is founded on elemental humanity and common sense, for
parents should not be deprived by Government of the right to direct the lives
and education of their own children.
Though there has been no constitutional amendment or act of Congress
changing this established legal principle almost a century old, the Supreme
Court of the United States, with no legal basis for such action, undertook to
17
exercise their naked judicial power and substituted their personal political and
social ideas for the established law of the land.9
Now, this is starting to look pretty bad for Brown, isn’t it? As the Southerners tell it, there
is a long line of precedents that seem to support them. Their claim is that they structured their
lives – certainly their entire system of public schools, but much more as well – around the
holding of Plessy v. Ferguson that separate was equal was the constitutional rule.
In truth, it’s not quite that clear. Law, even constitutional law, evolves and changes over
time. From the late 1930s to the early 1950s, the Supreme Court struck down segregation in
education in a series of important cases. For example, in Sweatt v. Painter, 339 U.S. 629 (1950),
the plaintiff sued challenging the lack of a law school for African-Americans in Texas. Texas
made accommodation to have existing law faculty teach the African-American students, and
when that proved a farce, Texas actually set up a new law school for African-American students
alone. But the Supreme Court easily concluded that the new hastily-organized law school could
not possibly afford the same education and prestige as Texas’s flagship school, the University of
Texas at Austin. It compared the facilities and found them wanting, then went further and said:
“What is more important, the University of Texas School of Law possesses to a far greater
degree those qualities which are incapable of measurement but which make for greatness in a
law school.” 339 U.S. 629, 634 (1950). Even more useful was McLaurin v. Oklahoma State
Regents for Higher Education, 339 U.S. 637 (1950). Oklahoma barred African-Americans from
existing graduate schools. But when McLaurin sued – he was seeking a doctorate in education –
Oklahoma amended its law to provide for such education so long as the education was
segregated. Pictures taken at the time show George McLaurin sitting in a chair in a section of the
classroom marked off by white lines from the rest of the room.
9
102 Cong. Rec. H3948, 4004 (Mar. 12, 1956).
18
Copyright: Bettman/Corbis, Photograph Date 16 October 1948.10
He also had to eat in a special place in the cafeteria, sit in a special seat in the library, etc.
The Court held that this violated the Equal Protection Clause, saying McLaurin “is handicapped
in his pursuit of effective graduate education. Such restrictions impair and inhibit his ability to
study, to engage in discussions and exchange views with other students, and, in general, to learn
his profession.” 339 U.S. 637, 641 (1950).
Although the handwriting may have been on the wall, it still was not clear as a matter of
precedent that segregated primary school education was unlawful. These earlier cases involved
graduate students, and one might argue graduate students had a greater need for the sort of
contact with professionals to get adequate training. Besides, in each case the claim was that the
graduate education the state offered was not equal. Certainly it helped the Brown plaintiffs that
in Sweatt and McLaurin the Court was increasingly relying on intangible differences to hold
separate was not equal. Yet, even the Brown Court acknowledged that “[i]n none of these cases
was it necessary to re-examine the doctrine [of ‘separate but equal’] to grant relief to the Negro
plaintiff.” 347 U.S. 483, 492 (1954).
To make matters more difficult, some Southern states were devoting substantial resources
to equalizing their school systems. In 1951, for example, South Carolina embarked on a major
10
http://www.corbisimages.com/stock-photo/rights-managed/BE029082/african-american-student-sits-outside-of-
classroom
19
initiative to equalize educational facilities and opportunities for black and white students. South
Carolina’s Governor (and former Supreme Court justice) James F. Byrnes obtained the state’s
General Assembly’s support for a three-cent sales tax increase and a $75 million bond issue for
the purpose. This school equalization program was aimed, of course, at bolstering the state’s case
that it met the Plessy standard in the context of public schools.11
Even on the facts, then, the
situation was not perflectly clear that the faciltiies could not, in the near future, be adequate to
meet the Plessy standard.12
Thus, as Justice Jackson observed, it was not going to be easy to
make the case that segregated public schools were unlawful: “the thoughtful layman, as well as
the trained lawyer, must wonder how it is that a supposedly stable organic law of our nation [i.e.,
the Constitution] this morning forbids what for three quarters of a century it allowed.” Richard
Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s
Struggle for Equality 692 (2004).
D. And More . . .
There’s more to interpreting a Constitution than text, original understandings, and
precedent. Can you think of other factors that a good interpreter might take into account? In How
to Talk about a Constitution, Barry Friedman and Sara Solow suggest:
In some ways, the debate about interpreting the Constitution has been going
nowhere for years, and should be put aside in favor of looking at the full
range of sources that courts actually examine in constitutional litigation, this
form of ordinary interpretation is, in fact, what lawyers and judges actually do
in the process of constitutional interpretation; looking at not just the text and
original meaning, but also pre- and post-ratification practice, precedent,
evolved understanding, normative justification, and consequentialist
limitations on the right in question.13
The difficulty, however, is that the further one goes beyond text, intent and precedent, the
more controversial the interpretive method becomes. Factors like anticipated consequences, or
11
By the time of the second trial in the South Carolina case in 1952 (Briggs v. Elliot), which followed an initial
decree by the district court requiring equalization of school facilities in 1951, the district court had found, as a matter
of fact, that the state had engaged in good faith compliance with the court order and made substantial progress
toward equalization. See Briggs v. Elliott, 103 F. Supp. 920, 922 (D.C.S.C. 1952)(“There can be no doubt that as a
result of the program in which defendants are engaged the educational facilities and opportunities afforded Negros
within the district will, by the beginning of the next school year in September 18952, be made equal to those
afforded white persons.”); see also Brown v. Board of Education of Topeka, Kansas, 98 F. Supp. 797 , 798
(D.C.Kan. 1951)(“We have found as a fact that the physical facilities, the curricula, courses of study, qualification or
and quality of teachers, as well as other educational facilities in the two sets of schools are comparable.”). Not all
school districts involved in Brown, however, were found to have approached or achieved equal status. See Belton v.
Gebhart, 87 A.2d 862, 869 (Del.Ch. 1952)(concluding that “with respect to teacher training, pupil-teacher ratio,
extra curricular activities, physical plants and aesthetic considerations,” the black school is inferior to the white
school).
12
[Insert quotes from federal cases holding that equality did not mean identical facilities for students of the different
races.]
13
See further, Solow, Sara and Friedman, Barry, ‘How to Talk About the Constitution’ (2013) 25 Yale Journal of
Law & the Humanities 69, 76.
20
what is morally correct, engender disagreement very quickly, raising anew the question why
judges rather than democratic bodies should be making these decisions. Consider in that regard
the views of one of America’s greatest legal philosophers, Ronald Dworkin, about why Brown
was right, even when it ran counter to the original intentions of the Framers and was not
immediately apparent from the text:
America's growing sense that racial segregation was wrong in principle,
because it was incompatible with decency to treat one race as inherently
inferior to another, can be supported either on grounds of banned sources, that
some preferences must be disregarded in any acceptable calculation of what
makes the community better off on the whole, or on grounds of banned
categories, that some properties, including race, must never be made the basis
of legal distinction.14
Granting Dworkin his argument, do you believe it would have persuaded the authors of the
Southern Manifesto?
FOR DISCUSSION
1. In light of what you’ve read, how would you assess the question of whether the Brown
decision was consistent with what the Constitution required? Stated differently, putting aside
your view of the merits – a question we all concede seems easy now – were the Southerners
justified in feeling that the law had changed on them rather dramatically? Or stated yet one more
way, do you think the result in Brown was compelled by the Constitution? Not compelled but
permitted? Neither compelled nor permitted, as the Constitution stood in 1954? Defend your
answer.
2. For what it is worth, the Supreme Court is entitled to overrule its precedents. Indeed, this is
believed essential because once the Supreme Court says the Constitution requires something, the
other branches are believed not able to change this. It is the Court, or no one. Does the Brown
Court overrule Plessy v. Ferguson?
3. Can you pinpoint the key move on which the Court’s decision rests? (This is a point to which
we will return.)
IV. Brown as Ideology
The discussion of the applicable legal sources in Brown indicates that the choice to find
segregated elementary education a per se constitutional violation was governed—at best—by
ambiguous legal authority, especially regarding the proper interpretation of the Fourteenth
Amendment in light of its framers’ intent. At worst, those same justices encountered a
longstanding legal framework created in the wake of Plessy v. Ferguson that supported the
continuation of separate but equal educational facilties for school children in the South.
14
Dworkin, Ronald, Law’s Empire (1986), 388.
21
If legal sources, precedents, and constitutional history did not clearly drive the outcome
in Brown, then what alternative explanation exists for the Court’s firm conclusion that the
separate education of black children constituted a per se violation of the Fourteenth
Amendment? What caused the justices to decide that, even in the context of elementary schools,
state efforts to equalize educational opportunities for school children would no longer be
sufficient to satisfy the equal protection standard? And what persuaded the justices to render
such a landmark decision unanimously?
As we will learn in Chapter 3, some scholars look to the backgrounds and political
predispositions of judges to explain case dispositions, and when the doctrine shifts they often
look at the shifting membership of a court over time. Typically found in political science
departments, these scholars advance the explanation that the decisions of Supreme Court
justices—like those of other political actors—are shaped by the justices’ policy preferences.
Clearly then, this perspective builds from the premise that judges make policy, a straightforward
notion but one that conflicts with what they see as the “unsophisticated view that judges are
objective, dispassionate, and impartial in their decision making.”15
It is certainly true that many
of the cases selected by the Supreme Court for review involve complex, difficult, or ambiguous
legal issues, and so the justices often enjoy considerable discretion in shaping case outcomes.
According to the political science theory of judicial decision making, known as “the attitudinal
model,” the justices exercise their discretion by deciding disputes “in light of the facts of the case
vis-à-vis the ideological attitudes and values of the justices.”16
Can the attitudinal model help to explain Brown? Doing so requires us to identify “the
ideological attitudes and values of the justices” who were sitting on the Court at the time Brown
was decided. Even within the single case of Brown, however, the Court’s membership was not
static. Brown v. Board of Education and its companion cases were initially consolidated and
placed on the Court’s docket in the 1952 Term.17
At that time, the Court was led by Chief Justice
Fred Vinson. As discussed in more detail below, the Court did not to decide the case in the 1952
Term, choosing instead to hold reargument in the 1953 Term. Before the case could be reargued
on the scheduled date in October 1953, however, Chief Justice Vinson died on September 8.
15
Segal, Jeffrey, and Harold Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge:
Cambridge University Press, 2002), at 4.
16
Id. at 86. Social scientific models of human behavior represent simplified representations of reality; they ignore
specific details in order to construct an explanation of individuals’ decisions and actions that focuses on the core or
central factors that shape the behavior of interest. In contrast to the attitudinal model, for example, one might argue
in favor of a “legal model” of judicial decision making, which suggests that the justices’ choices are governed and
determined by controlling legal principles. See infra Chapter ##; Segal & Spaeth, supra note ##, at Chapter 2.
16
Id. at 86.
17
The named plaintiffs in Brown v. Board of Education, including Oliver Brown as guardian to his elementary
school-aged daughter Linda, represented a class of black school children in Topeka, Kansas. Three other lawsuits
were consolidated with Brown after the entry of judgments in federal district court or, in one case, the Delaware
Court of Chancery: Belton v. Gebhart, 87 A.2d 862 (Del.Ch. 1952); Davis v. County School Bd. of Prince Edward
County, VA, 103 F. Supp. 337 (E.D. Va. 1952); and Briggs v. Elliott, 103 F. Supp. 920 (E.D.S.C. 1952). An
additional case decided by the Supreme Court in the same term, Bolling v. Sharpe, arose from the District of
Columbia, where the federal district court dismissed the plaintiffs’ complaint challenging segregated education
there; the Court granted the writ of certiorari in the case before the Court of Appeals had the opportunity to review
the dismissal. See 347 U.S. 497, 498 (1954).
22
President Eisenhower acted quickly to select California Governor Earl Warren for a recess
appointment beginning on October 1, 1953.18
How can we know whether the values and attitudes of these justices provide a useful
explanation for the Court’s actions in Brown? First, we need to devise a way to measure the
justices’ ideologies. One way do this is by relying on a proxy: information about the Presidents
who appointed the justices. Certainly in recent history, to the extent they were able to discern
nominees’ values, Presidents have appointed justices who share their views on legal and social
policies. Thus, it is widely taken as true that appointees of Republican Presidents on the current
Court are more conservative in their voting behavior than appointees of Democratic Presidents.19
What about the justices serving during the 1952-1954 Terms in which Brown I and Brown II
were decided? Table XX provides information about their appointing Presidents, presented in
chronological order of appointment. Because desegregation was largely a regional issue, the
table also presents information about the justices’ childhood locations.
Table XX
Justice Appointment
Date
Appointing President
(Party)
Home State*
Hugo Black 8/17/1937 Roosevelt (D) Alabama
Stanley Reed 1/25/1938 Roosevelt (D) Kentucky
Felix Frankfurter 1/30/1939 Roosevelt (D) New York
William O. Douglas 4/4/1939 Roosevelt (D) Washington
Robert H. Jackson 7/7/1941 Roosevelt (D) New York
Harold Burton 9/19/1945 Truman (D) Massachusetts
Sherman Minton 10/4/1945 Truman (D) Indiana
Fred Vinson 6/20/1946 Truman (D) Kentucky
Tom C. Clark 8/18/1949 Truman (D) Texas
Earl Warren 10/1/1953
(recess)
Eisenhower (R) California
18
Chief Justice Warren was confirmed by the Senate on March 1, 1954. Several justices have been appointed to the
Supreme Court while the Senate was in recess, including President Washington’s appointment of John Rutledge to
the position of Chief Justice in 1795, and Eisenhower’s additional recess appointments of Justice William J.
Brennan in 1956 and Justice Potter Stewart in 1959.
19
See, e.g., Liptak, Adam, “Court Under Roberts is Most Conservative in Decades,” New York Times (July 25,
2010), at A1.
23
*Home state is defined as the justices’ “Childhood Location” as identified in the U.S. Supreme
Court Compendium, Table 4-2.
The table reveals several interesting facts. First, with the exception of Earl Warren, every
justice serving on the Court from 1952 to 1954 was appointed by a Democratic President. This
might lead a facile observer to conclude that Brown is easily explained by the justices’ liberal
attitudes. After all, nearly all appointed by Democrats and we all know that Democrats,
especially after the New Deal, were and are more liberal than Republicans. Moreover, our
experience tells us that liberals support the expansion of civil rights.20
Why should we be
surprised that the Court rendered an unanimous judgment in Brown that expanded the civil rights
of school children to attend schools without regard to their race?
But this conclusion would be premature for several reasons. First, as is apparent from the
chart, one key player in the Brown saga and a consistent supporter of expanded civil rights and
civil liberties, Chief Justice Earl Warren, was appointed by a Republican President. Second,
several of the justices on the Vinson Court prior to the 1952 term were bitterly divided by feuds
and ideological divisions, regardless of the fact that they were all appointed by Democratic
Presidents. Strained relations were present between Jackson and Black, Black and Frankfurter,
and Douglas and Frankfurter, in particular. 21
These tensions were highlighted in the media. In
one particularly notable incident in 1946, for example, Justice Jackson (then serving as Chief
Prosecutor at the Nuremberg Trials) cabled the Congressional judiciary committees that charged
Justice Black with participating in cases in which he had a conflict of interest.22
The public cable
produced a cause celebre in Washington—referned to by Jackson himself as “the disgraceful
brawl.”23
Moreover, the justices on the Vinson Court—although all appointed by Democrats—
came to the high court with widely varying backgrounds that likely shaped their views on civil
liberties, sometimes in unexpected ways. Justice Black was a former member of the Alabama Ku
Klux Klan who had relied on the Klan’s support to win his Alabama Senate seat in 1926. Several
weeks after his victory in the Democratic primary, he addressed three thousand hooded
Klansmen in Birmingham, where he thanked the Klan for its political support and pledged
allegiance to Klan principles. (Black later repudiated his connection to the Klan in a national
radio address given when his past became public shortly after Roosevelt nominated him to the
Court.) Justices Reed and Vinson were raised in from the border state of Kentucky, and Clark
hailed from the deeply segregated state of Texas. Justice Jackson, on the other hand, was raised
in New York and confessed that he had no personal experience or conscious knowledge of the
20
Black voters supported the Republican “Party of Lincoln” until 1936, when they deserted the Republican Party in
a major party realignment and supported Franklin Roosevelt.
21
Antagonisms between Justices Frankfurter and Black, as well as between Douglas and Frankfurter, are also well
documented. See, e.g., Simon, James A., The Antagonists: Hugo Black, Felix Frankfurter, and Civil Liberties in
Modern America (Simon and Schuster, 1989); Yalof, David A., Pursuit of Justices: Presidential Politics and the
Selection of Supreme Court Nominees (Chicago: University of Chicago Press, 1999)(describing “turbulent and bitter
factionalism dividing the Court” at the time of Vinson’s selection as Chief Justice in 1946); Kluger, Richard, Simple
Justice: Brown v. Board of Education and Black America’s Struggle for Justice (1976), at 584 (the 1952 Vinson Court
“was perhaps the most severely fractured Court in history”).
22
Hutchinson, Dennis J. “The Black-Jackson Feud,” 1988 The Supreme Court Review 203 (1988).
23
Id. at 222.
24
segregation issue until he came to the Court.24
Former Indiana Senator Sherman Minton,
although an “almost pathological Democrat,”25
was the lone dissenter in the case of Terry v.
Adams (1953), in which the Court rendered its final decision in a series of cases invalidating
Texas’s all white primary system. His voting record in civil rights cases thus did not suggest that
he would necessarily support Plessy’s invalidation. Indeed, Truman’s appointees in particular
were not selected because they shared Truman’s progressive position on civil rights issues, but
because of personal and professional friendships and relationships with the President.26
Justice
Burton, although appointed by a Democratic President, was himself a Republican Senator from
Kentucky at the time of his nomination.
Political and historical circumstances also shaped the individual justices’ views on the
proper role of the Supreme Court in national governance—views which had the potential to
determine their predispositions toward judicial review of state enactments mandating
segregation. Justices Frankfurter, Reed and Jackson, appointed by Roosevelt in the wake of the
famous struggle between the Court and the President over the constitutionality of New Deal
policies, were more likely to advocate judicial restraint and deference to legislative judgments.
Justices Black and Douglas, on the other hand, had emerged on the Court as champions of
judicial activism, joining forces in many cases to advocate an expansive reading of the
Constitution in furtherance of social justice.27
These differences of opinion about the proper role
of the Court became fodder for articles in the public press, and easily could have shaped the
justices’ views on overturning Plessy.28
Thus, despite the fact that all the justices on the Court prior to the arrival of Chief Justice
Warren were appointed by Republicans, there were sharp differences among them. Whether such
differences emerged as a result of varying background characteristics, ideologies, or views of the
proper judicial role, they plainly are evident in the record of their voting behavior. First, consider
the graph presented in Figure XX, which provides information about the dissent rates on the
Court for the 1925 to 1964 Terms.29
As is immediately apparent, the late 40s and early 50s were
characterized by an astonishingly high dissent rate relative to prior decades, peaking in the 1952
Term in which the Court produced unanimous outcomes in only 20% of its decisions! This is the
24
See Conference Notes of Justice Clark, Dec. 13, 1952 (Tom C. Clark Papers, Tarlton Law Library, Univ. of Texas
Law School, Box A27, Folder 5, Doc. 4)(“Jackson: . . . Not conscious of the problem until I came here – we had
segregation in Jamestown”).
25
According to Felix Frankfurter, that is. Kluger, supra note #, at 612.
26
Yalof, supra note #, at Ch. 2. Galloway, Russell W., Jr. “The Vinson Court: Polarization (1946-1949) and
Conservative Dominance (1949-1953),” 22 Santa Clara L.Rev. 375, 378 (1982)(“[a] frequently noted paradox of
Supreme Court history is that the relatively liberal President Harry S. Truman moved the court far to the right by
appointing four conservative justices”).
27
[RA: cites—perhaps note Black’s recalcitrance on incorporation as exception?]
28
For a discussion, see Friedman, Barry, “The Birth of an Academic Obsession: The History of the
Countermajoritarian Difficulty, Part Five,” 112 Yale L.J. 153, 181-182 (2002); for an example, see Arthur M.
Schlesinger, Jr., The Supreme Court: 1947, Fortune, Jan. 1947, at 73, 74-7 (“[T]he clash of judicial personalities had
transformed them from mere marginal divergences into a fundamental conflict over the proper function of the
judiciary in a democracy.”)[check quote—from Schlesinger?].
29
Table 3-2 is organized by Term, change label on X axis in table.
25
lowest proportion of unanimous decisions per Term seen on the Court since its inception, and it
has never been replicated even to this day.30
Even more germane may e the level of agreement in cases most relevant to Brown—those
involving civil rights and liberties. According to the Supreme Court Database, which provides
data on the voting behavior of the justices during the period prior to Brown, the justices achieved
unanimity in only 40% of their decisions involving civil rights and liberties in the Terms 1949 to
1952.31
In these cases, then, we see a somewhat higher level of consensus but one that still
reflects a fairly divided Court. And what of cases involving race specifically? Table XX
provides information about the Court’s inter-agreement in cases involving race.
Table XX: Voting Behavior in Race Cases, Vinson Court 1946-1953
Case Issue Date Vote
Morgan v. Virginia Transportation Segregation, ICC 1946 7-1
30
Since 1952, the proportion of unanimous decisions each term has hovered around .6. See The Supreme Court
Compendium, Table 3-2.
31
Code:tab unan if naturalCourt == 1302 & issueArea == 2 & (decisionType == 1 | decisionType == 6 |
decisionType == 7). Describe issues included in issueArea 2.
26
Patton v. Mississippi Blacks on juries 1947 9-0
Hurd v. Lodge Restrictive Covenants 1948 9-0
Moore v. New York Jury Discrimination 1948 5-4
Bob-Lo Excusion Co. v.
Michigan
Preemption of State Civil Rights Statute 1948 7-2
Spiuel v. Board of Regents Race discrimination in law school education 1948 9-0
Shelly v. Kraemer Race discrimination in real estate covenants 1948 6-0
Oyama v. California Discrimination against Japanese in Escheat Law 1948 6-3
Fisher v. Hurst Mandamus Action to enforce Sipuel 1948 8-1
Takahashi v. Fish and Game
Comm.
Discrimination against Japanese in state gaming law 1948 7-2
Graham v. Brotherhood of
Firemen
Railway Labor Act 1949 7-0
Carter v. Illinois Due Process in Criminal Proceeding 1949 5-4
Terminiello v. Chicago Fighting words: anti-Jewish speech 1949 5-4
Henderson v. New York Transportation Segregation, ICC 1950 8-0
Cassell v. Texas Race discrimination in grand jury 1950 8-1
McLaurin v. Regents Educational segregation, graduate school 1950 9-0
Sweatt v. Painter Educational segregation, law school 1950 9-0
Hughes v. Superior Court Free speech: picket against court order to integrate 1950 8-0
South v. Peters One-man one-vote: racial dilution 1950 7-2
Shepherd v. Florida Blacks on juries 1951 9-0
Feiner v. New York Fighting words, incite blacks to rebellion 1951 6-3
Kunz v. New York Hate speech: religion 1951 8-1
Sweeney v. Woodall Cruel Treatment of Black Prisoners 1952 9-0
Briggs v. Elliott Separate but Equal Education 1952 7-2
Railroad Trainman v. Howard White-only Union 1952 6-3
27
Beauhanarais v. Illinois Hate Speech: Race 1952 5-4
Gray v. Board of Trustees Educational segregation, mootness 1952 9-0
Barrows v. Jackson Racially Restrictive Housing Covenant 1953 6-1
District of Columbia v.
Thompson
Discrimination in Accommodations 1953 8-0
Avery v. Georgia Blacks on juries 1953 8-0
Terry v. Adams White-only primary 1953 8-1
Brown v. Allen Blacks on juries 1953 6-3
Orvis v. Brownwell Seizure of Japanese Property 1953 6-2
Kwong Hai Chew v. Colding Due process (5th) in deportation proceedings 1953 8-1
Although there were many unanimous cases, some of these cases in which race was an
issue were decided by a sharply divided Court.
Our search for an ideological explanation for the unanimous decision in Brown based on
the party of the appointing President, therefore, has resulted in null results. That is, while it might
seem obvious to conclude that, since most of the Brown justices were appointed by Democrats,
unanimity in favor of a pro-civil rights outcome was easy to achieve, a closer look calls this into
question. Data on the justices’ actual voting behavior indicates that even justices appointed by
the same President often disagreed in civil rights matters before the Court. Although some
notable cases involving race discrimination decided prior to Brown were decided unanimously,
others were not. Finally, very basic information about the justices’ backgrounds alone would
suggest they might have very different views about race cases. It is impossible for us to
conclude, therefore, that the unanimity in Brown was attributable exclusively to the justices’
attitudes or ideological predispositions.
FOR DISCUSSION
1. The voting behavior of Vinson Court justices described above suggests that sometimes
Presidents appoint justices who are not like-minded on certain issues. Assume you are a
President who has appointed four justices—as did Nixon, Truman, Roosevelt, and Taft (the latter
two each appointed five!). What would you think if your four justices consistently split their
votes 2-2 in a large number of cases? Would you be disappointed in your appointees?
2. As we will see in Chapter XX, the attitudinal model of judicial decisionmaking suggests that
justices decide cases based upon their ideological predispositions. In the case of race
discrimination, how might the justices’ form their attitudes about the application of the
28
Fourteenth Amendment--if not from the law? Would judicial attitudes be any different, do you
think, than attitudes about policy formed by legislators?
3. We might expect that the justices’ background experiences might have shaped their views
about whether segregated schools violate the norms embodied in the Fourteenth Amendment. If
you agree, what does this conclusion suggest about diversity on the Court? Does it matter
whether justices with varying backgrounds are appointed? Does the current Court reflect a
diversity of backgrounds and experiences? See Barton, Benjamin H., “An Empirical Study of
Supreme Court Justice Pre-Appointment Experience, 64 Fla. L.Rev. 1137 (2012) (Roberts Court
justices have spent more time in Washington D.C., in legal academia, and on appellate courts
than any previous Court).
V. Brown and Agenda Setting
Suppose that in May of 1954, the justices of the Supreme Court decided, all on their own,
and with no one urging them to do so, that segregated schools violated the Constitution and that
they wanted to do something about it. Could they? The answer is obviously no; they had to wait
for a case to bring the issue to them. This highlights an important point about courts, which is
that – unlike other branches of government – judges do not set their own agenda.
This general statement about courts and agenda setting obscures a great deal of nuance.
For example, as we will see, both here and in Chapter 4, there are ways that judges can try to set
their agendas, although it proves easier for them to avoid issues than to grab hold of them. Still,
the fact that courts are different than other branches of government when it comes to agenda
setting has important implications for how judges decide cases, and what the content of the law
is at any given time.
One of the most important implications is that when it comes to the judicial agenda,
litigants have a certain degree of power. (Some types of litigants, we will see, have more power
than others, and this too affects the content of the law.) It seems altogether fitting, then, that the
focus of our story shifts from the justices of the Supreme Court to the National Association for
the Advancement of Colored People, the NAACP, the organization that brought the cases that
became Brown v. Board of Education to the courts.
A. The NAACP’s Litigation Campaign
The NAACP was created in 1909.32
Although the initial impetus was racial violence, the
organization’s focus quickly expanded, encompassing issues such as voting rights, and racially
32
For a detailed discussion of the NAACP’s litigation strategy over this time period see MICHAEL J. KLARMAN,
FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND RACIAL EQUALITY (2004), RICHARD KLUGER, SIMPLE
JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA’S STRUGGLE FOR EQUALITY AND
JUSTICE (1975), and MARK TUSHNET, THE NAACP LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-
1950 (1987).
29
discrimination in a variety of contexts including housing and employment. And school
segregation, of course.
Litigation became a focus of the NAACP, in part because seeking redress from other
government actors seemed an act of futility.33
The use of the filibuster in the Senate allowed
Southerners to block most race legislation coming from Congress.34
The insidiousness of its use
was highlighted by the fact that even anti-lynching legislation could not get adopted.35
For
reasons of personal conviction and politics – African-Americans could prove an important voting
bloc where their ability to vote was not impeded – Presidents took a number of measure to help,
but still the Executive Branch could only accomplish so much on its own.36
Although they were
few, there had been a number of important court decisions protecting African-Americans from
injustice, making the judiciary a promising situs for progress.37
The NAACP’s litigation campaign began in earnest in the 1930s. See Thurgood Marshall,
An Evaluation of Recent Efforts to Achieve Racial Integration in Education Through Resort to
the Courts, 21 J. NEGRO EDUC. 216, 218-19 (1952).38
It was aided by a $100,000 grant from the
Garland Fund, which enabled – among other things – the production of the Margold Report,
setting out a comprehensive litigation strategy (albeit one that over time was often honored most
in the breach).39
In 1939 the NAACP created a separate Legal Defense Fund, so that it could
raise donations specifically for litigation.40
One of the chief areas for litigation was school desegregation, and here the NAACP faced
a dilemma: to seek equalization of opportunity or an end to racial segregation. Plessy v.
Ferguson obviously suggested that separation was lawful only so long as equal resources were
afforded to both races. Thus, segregated education could be challenged on the ground that it did
not afford African-Americans equal opportunities. Challenging segregation itself, on the other
hand, would require a head-on attack on Plessy.
Lawyers at the NAACP settled on a strategy that began with publicly-funded graduate
education, and looked to expand eventually to primary and secondary education. See Marshall,
supra, at 318-19.41
There were a number of reasons for this. First, intriguingly, desegregating
33
RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA’S
STRUGGLE FOR EQUALITY 167 (2004).
34
See ROBERT CARO, MASTER OF THE SENATE 94 (1983) (describing the South’s overwhelming influence in the
Senate).
35
KLUGER, supra, at 167; see also JACK GREENBERG, CRUSADERS IN THE COURTS 17 (1994).
36
See KLARMAN, supra, at 107-108 (chronicling successive administrations’ attitudes toward race); GREENBERG,
supra, at 61 (noting the Truman Administration’s report on race relations in 1947 called for significant reforms, but
would take 21 years to be adopted by Congress).
37
See, e.g., Pearson v. Murray, 182 A. 590 (Md. 1936) (successfully challenging the absence of a law school for
African Americans in Maryland).
38
Though as early as 1926 the NAACP’s Annual Report declared that the federal courts were the best option for
advancing civil rights. See TUSHNET (1987), supra, at 1.
39
Robert L. Rabin, Lawyers for Social Change: Perspectives on Public Interest Law, 28 Stan. L. Rev. 207, 215
(1976) (quoting NAACP Ann. Rep. 22 (1934)).
40
GILBERT JONAS, FREEDOM’S SWORD: THE NAACP AND THE STRUGGLE AGAINST RACISM IN AMERICA, 1909-1969
46 (2005).
41
see also Mark Tushnet, Litigation Campaigns and the Search for Legal Rules, 6 J. App. Pract. & Process 101,
101-103 (2004).
30
graduate or undergraduate education was seen as less threatening to the South than seeking to
desegregate public primary and secondary schools. As Thurgood Marshall noted, “[t]hose racial
supremacy boys somehow think that little kids of six or seven are going to get funny ideas about
sex and marriage just from going to school together, but for some equally funny reason
youngsters in law school aren’t supposed to feel that way.”42
Second, the broader strategy in
demanding equality was to raise the cost of segregation so that it became prohibitive. See
Marshall, supra, at 318.
The NAACP scored an early victory in the State of Missouri ex rel. Gaines v. Canada
305 U.S. 337, 352 (1938) case. After Lloyd Gaines was denied admission to the University of
Missouri School of Law on racial grounds, the state offered – as Southern states commonly did –
to finance Gaines’ education out of state. The NAACP sued arguing that an out of state legal
education was not equal. The Supreme Court agreed, holding that the Constitution required instate
education. 305 U.S. 337, 352 (1938).
Toward the end of the 1940s, a variety of factors were leading the NAACP to the
conclusion that it ought no longer to seek equalization, and should move instead for the
elimination of segregation altogether43
. Equalization suits were expensive to litigate. And
although sometimes disparities were evident, in other circumstances proving them could be more
complicated – such as in the case of South Carolina, which (as we have seen) was racing to
equalize its schools. Besides, a victory in an equalization suit might afford relief in the
geographic area in which it was filed, without establishing any broader legal principles.
The next key graduate education case, Sweatt v. Painter, 339 U.S. 629 (1950), moved the
NAACP to pursue single-mindedly the elimination of segregation. Sweatt, as we have seen,
decided that Texas’s attempt to throw together a law school for African-Americans failed the test
of equality. Critical to the NAACP’s strategic decisions was the language in Sweatt that “the
University of Texas Law School possesses to a far greater degree those qualities which are
incapable of objective measurement but which make for greatness in a law school. Such
qualities, to name but a few, include reputation of the faculty, experience of the administration,
position and influence of the alumni, standing in the community, traditions and prestige.” 339
U.S. 629, 634 (1950). Thurgood Marshall, the lead counsel for the NAACP, believed that line
contained an important message for their litigation strategy.44
If the “intangibles” of racial
segregation could render an otherwise equal educational experience unequal, then perhaps
segregated primary education was itself vulnerable.
The case that became Brown v. Board of Education was the product of 4 cases begun in
the lower courts to test the boundaries of Sweatt. The cases were litigated as challenges to the
lawfulness of segregation, but the plaintiffs’ case included information about unequal schooling
opportunities.45
Thus, a court willing to find for the plaintiffs could either decide the case based
on firm precedents regarding “separate but equal,” or it could go further and hold that separate
42
Alfred Kelly, The School Desegregation Case, in QUARRELS THAT HAVE SHAPED THE CONSTITUTION 318 (John
Garraty ed., 1987).
43
See Mark Tushnet, Litigation Campaigns and the Search for Legal Rules, 6 J. APP. PRAC. & PROCESS 101, 101-
103 (2004).
44
TUSHNET (1987), supra, at 135.
45
Insert fn about other cases.
31
but equal was unconstitutional altogether. Suits were brought in Delaware, Kansas, South
Carolina and Virginia. The Delaware Court decided the schools were unequal and ordered
equalization. The NAACP lost all the other suits, on the ground that the schools were equal or in
the process of being equalized, and that the Constitution did not require integration.
The stage was thus set for a decision by the Supreme Court.
B. Agenda-Setting, Courts and the Law
This simple story of the NAACP’s litigation campaign to desegregate schools contains
within it some basic lessons regarding the question of agenda setting and courts, lessons we
explore in full in Chapter 5. Brown is, of course, not merely an iconic case, but an idiosyncratic
one as well. Few litigations in American history, even those begun with the purpose of
effectuating legal change, are the product of a deliberate and sustained effort on the magnitude of
Brown. But here, as in other places, exceptions can illuminate the rule.
Can the process of judicial agenda setting affect substantive law? The idea hardly seems a
crazy one. If cases are not brought, law cannot be made. If cases are brought in one order versus
another, the path of the law may affect where it comes out. If courts are forced to hear cases at
inauspicious times, or decide issues presented by difficult facts, this too can affect the rule that
gets handed down.
1. The Agenda Setting Capacity of Courts
The simple statement that courts cannot set their own agendas obscures some of the ways
courts can try to affect the sorts of cases they hear.
a. Ducking Issues
In reality, it is far easier for courts to duck deciding legal issues than to reach out to
decide them. Although a court can hardly put an issue on its agenda, once the issue is there,
judges can find ways to avoid deciding them. This is evident from two interesting episodes in the
long legal struggle for racial equality.
In 1941, the Supreme Court heard a case called Railroad Commission v. Pullman
Company, 312 U.S. 496. The case involved the constitutionality of a rule adopted by the Texas
Railroad Commission, stating that Pullman sleeper cars had to be under the control of an
employee holding at least the rank of a Pullman conductor. As everyone knew, Pullman
conductors were white, and porters, who reported to conductors, were black. Thus, the idea was
that sleeper cars would be under the control of white railroad employees. The Pullman porters
sued the Railroad Commission, and the Pullman Company joined them in this endeavor. Given
what you have read already, you can guess that the Supreme Court was not anxious to decide
racial questions of this nature in 1941, and it didn’t. Instead, in a decision that has become one of
the chestnuts of the law of federal jurisdiction, the Supreme Court punted the case back to the
Texas state courts. There apparently was some question whether the Railroad Commission was
32
entitled under state law to issue this rule in the first place. If not, then there was no need to
decide the federal question. Thus, the Supreme Court decided that the parties must get resolution
of the state law question from the state courts, only returning to federal court if there was still a
federal constitutional question to be decided. In this way it avoided the awkward question it had
been asked to decide.
Even after Brown was decided in 1954, the Court continued to duck some racial issues,
the most significant of which was state anti-miscegenation laws, i.e., laws that prohibited racial
intermarriage. This issue found its way to the Supreme Court in 1955 in the case of Naim v.
Naim, 350 U.S. 891 (1955). The justices knew full well that the matter was an incendiary one
among Southerners. The Supreme Court declined to decide it holding: “The inadequacy of the
record as to the relationship of the parties to the Commonwealth of Virginia at the time of the
marriage in North Carolina and upon their return to Virginia, and the failure of the parties to
bring here all questions relevant to the disposition of the case, prevents the constitutional issue of
the validity of the Virginia statute on miscegenation tendered here being considered ‘in clean-cut
and concrete form, unclouded’ by such problems.” 350 U.S. 891, 891 (1955). This was an
implausible way to resolve the case, and the justices knew it. At the conference in which the
justices considered the case, Justice Felix Frankfurter stated: “Even if one regards the issue, as I
do, of a seriousness that cannot be rejected as frivolous, I candidly face the fact that what I call
moral considerations far outweigh the technical considerations of noting jurisdiction. The moral
considerations are, of course, those raised by the bearing of adjudicating this question to the
Court’s responsibility in not thwarting or seriously handicapping the enforcement of its decision
in the segregation cases.”46
(Frankfurter was one of the great manipulators ever to sit on the
Supreme Court. He also wrote the Pullman decision, and shortly we will see his role behind the
scenes in Brown itself.) The Supreme Court did not strike down state bans on racial
intermarriage until 1967, in Loving v. Virginia, 338 U.S. 1.
There is not always a way for a court to duck a tough question, and courts will usually
not be as nakedly transparent as the Naim court. Still, unlike the difficulty of finding a case and
putting it on the docket, there are often many procedural “outs” available to a court that believes
deciding a case is too difficult or will place the judiciary itself in institutional jeopardy. (The
judiciary’s need to protect itself from retribution by the other branches, or hostile public opinion,
are the subject of Chapters 9 and 10.)
b. Certiorari, and courts of discretionary review
Today, the Supreme Court would most likely not have had to go through the hoops it did
in Naim v. Naim, because today most of the Supreme Court’s jurisdiction is discretionary. This
is a critical difference between lower courts and high courts. It is common for some percentage
of a high court’s jurisdiction to be discretionary, meaning that the judges are allowed to decide
for themselves whether to resolve an issue presented by a case. Lower courts rarely have this
luxury. This discretionary power of review goes by different names, but in the Supreme Court of
the United States the Court decides to hear or not hear cases by granting or denying a writ of
46
Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1955, 68 GEO.
L.J. 1, 96 (1979) (quoting Memorandum of Mr. Justice Felix Frankfurter read at conference (Nov. 4, 1955) (Felix
Frankfurter Papers, Library of Congress)).
33
certiorari. There is a vast literature on the Supreme Court’s certiorari power, and the decision of
whether to hear a case or not.
c. Signaling to Litigants
Even though the Supreme Court cannot simply place matters on their docket, they do
have the means to attract some issues to them. One of the most intriguing ways is for the justices
to send “signals” to litigants about cases they would consider deciding and how they might
decide them. This isn’t usually explicit of course – though on rare occasion it can be – leaving
room for considerable reading of the tea leaves.
Following the decisions in Sweatt and McLaurin, Thurgood Marshall believed he had
been sent just a signal. As he wrote one of his expert witnesses, referring to the decisions and one
other decided that term, “All three of the decisions are replete with road markings telling us
where to go next.”47
Marshall was hardly alone; New York Times correspondent Arthur Krock
saw things similarly:
From now on a community must be able to prove beyond question that a
segregated complainant receives educational services equivalent to those
rendered the racial majority. And to do that will impose crushing financial
burdens on the community.
Hence, while Mr. Perlman did not get the Plessy doctrine specifically
overruled, he got the Supreme Court to put a price-tag on it which may have
the same effect in numerous localities. . . .
The facts . . . were so minutely inspected that litigation inevitably will follow,
based on conditions in segregated primary and secondary schools and
colleges. The Court made it crystal clear today that it will sympathetically
entertain any plea of inequality.48
d. Configuring Litigation
As a final example, courts can configure the litigation before them in ways to bring issues
to the fore or focus light on particular aspects of the case. Whichever way it was going to decide
the issue of school segregation, it was clear by 1952 that the Supreme Court felt it had no choice
but to seize the bull by the horns. In 1951, the NAACP had filed a request that the Supreme
Court review the Kansas decision. In the late spring of 1952 the Court accepted that request, but
delayed arguments to hear Virginia, South Carolina and Kansas at the same time. It also scooped
up a case from the District of Columbia, tossing that in the mix, and hurried along a case from
Delaware. This consolidation of the primary desegregation cases in the country let everyone
know the Court was taking this issue seriously, and that something major was in the offing.
47
MARK V. TUSHNET, THE NAACP’S LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 135 (1987).
48 TUSHNET (1987), supra, at 133.
34
2. The Power of Litigants
The fact that judges require cases before they can proceed to decide legal issues puts a
certain amount of power in the hands of litigants. They can bring cases or decline to do so, and
push them to appellate courts or make them go away before appellate courts can get their hands
on them. All this occurs in an attempt to manipulate the path of the law.
The NAACP litigation was part of a deliberate campaign to change the nation’s law. As
Charles Hamilton Houston – Dean of the Howard Law School and a prominent NAACP lawyer
– explained in the October 1935 issue of The Crisis, “The National Association for the
Advancement of Colored People is launching an active campaign against racial discrimination in
public education. The campaign will reach all levels of public education from the nursery school
to the university. . . .” TUSHNET (1987), supra, at 44. The NAACP had been pushed to do this as
early as 1929 by the Garland Fund, which believed that “it would ‘waste time and money’” to
fight isolated cases. TUSHNET (1987), supra, at 7. Thus, the Fund offered “to finance a largescale,
widespread, dramatic campaign to give the Southern Negro his constitutional rights, his
civil and political equality, and therewith a self-consciousness and self-respect, which would
inevitably tend to effect a revolution in the economic life of this country.” TUSHNET (1987),
supra, at 7.
The advantage of such a campaign was that it would create the possibility of
affirmatively affecting the law. Nathan Margold made this point in his report, urging the NAACP
to eschew equalization cases, because to do so would “not be establishing any new principles,
nor bringing any sort of pressure to bear which can reasonably be expected to retain the slightest
force beyond that exerted by the specific judgment or order that we might obtain. And we should
be leaving wholly untouched the very essence of the existing evils.” TUSHNET (1987), supra, at
27.
3. The Nature of a Legal Case
To change the law in a court, even a well-funded group must work within the confines of
a legal case or cases, which presents its own challenges. As Mark Tushnet, perhaps the leading
scholar of the NAACP’s litigation campaign, commented: “The plans had rested on an image of
‘a lawsuit’ as a thing, something like a block of wood, but lawsuits are processes. As we will see,
this was most obviously true with what proved to be the fantasy of conducting forty-five, or even
seven, coordinated lawsuits. It was hard enough to organize litigation for one lawsuit at a time;
simultaneous filings were practically impossible.” TUSHNET (1987), supra, at 43.
There were many choices the NAACP had to make along the way, some of which went
as the organization hoped, and many that took on a life of their own.
One choice was whether to pursue cases in federal or state courts. Knowing a little of the
history of the civil rights movement, and not much about the NAACP’s campaign, one might
assume federal courts were the easy choice. As is discussed in Chapter 4, how a judge is chosen
or kept in office might affect the willingness of that judge to rule in various ways. Federal judges
are chosen by the President with the consent of the Senate and serve for life; state judges for the
35
most part were in 1954 and are today elected. It is easy to see how the NAACP might not want to
put its faith in judges elected from Southern communities to dismantle segregation. In truth,
however, this was not how the NAACP saw it. Although there is some mention from as early as
1926 in preferring federal courts, in truth the NAACP litigated in both state and federal courts,
and the choices were often made for reasons other than this obvious one. TUSHNET (1987),
supra, at 1. Federal and state judges had the power to afford different sorts of relief; for example,
if the NAACP wanted a “mandamus” to get a student admitted to a school, that was believed a
question for a state judge. TUSHNET (1987), supra, at 49-50. Federal courts had the advantage of
using a uniform set of procedures, making life easier the NAACP lawyers. But if the NAACP
wanted to a federal court to strike down a state segregation law, that – at the time – required a
three-judge trial court, which presented problems of its own.
A lawsuit requires plaintiffs, and this alone had its perils. Simultaneously with the school
desegregation suits, the NAACP was litigating salary equalization suits for teachers. But any
teacher who stepped up to be a plaintiff quickly could find his or herself without a job,
eliminating their ability to lead a lawsuit, and deterring people from participating. Even when it
came to school desegregation cases, African-American teachers were leery; the belief was that
Southerners would never let them teach white children, especially white girls, and thus success in
these suits also meant lost jobs. TUSHNET (1987), supra, at 43-45, 111-113.
Nothing may demonstrate the difficulty of managing a lawsuit better than the curious
case of Lloyd Gaines. Having won his case ordering Missouri to either create a new in-state law
school or desegregate the University of Missouri, the logical next step for the NAACP was to
challenge the newly-created law school on equality grounds. When it came time to do so,
however, Gaines had not only moved to Chicago, but completely disappeared from the face of
the planet (never to be located again). As Houston wrote, “Since we cannot find Gaines, we
cannot go on.” TUSHNET (1987), surpra, at 74.
Then, there are the facts, which sometimes can be managed and sometimes not. The
Sweatt case developed in a way that posed both difficulty and possibility for the NAACP. As the
case was pending before a state appellate court, Texas abandoned its early pretense that an
African American law school in Houston was remotely the equivalent of the education provided
at the University of Texas at Austin, and established a new school sited near the Austin campus.
TUSHNET (1987), supra, at 126; see also KLUGER, supra, at 260. Students here would be taught
by UT-Austin faculty and use the state’s law library at the capitol. Facts like these made it
difficult to prove inequality, forcing the NAACP to focus on the “intangibles” that moved the
central constitutional question to the fore. TUSHNET (1987), supra, at 126-28.
4. The Symbiotic Nature of Courts and Cases
It should be evident that an interactive or symbiotic relationship exists between court
decisions and the cases that are brought to courts. Cases are filed, shaped by pre-existing law,
and then push the law in new directions, which in turn generates new cases. This was evident
throughout the NAACP campaign. The existence of Plessy dictated a challenge to the
equivalence of educational facilities for African-Americans. The decision in Gaines, which held
that an out-of-state education would not suffice, placed the focus on whether in-state facilities
36
were in fact equal. And, of course, the focus on intangibles in Sweatt dictated Thurgood
Marshall’s and the NAACP’s strategy moving into the cases that became Brown.
FOR DISCUSSION
1. Brown is sometimes referred to as the Nation’s first great litigation campaign, but that is
hardly the case. In the 1820s and 1830s there was a fight in the country over moving Native
Americans off of their tribal lands to make way for westward expansion of the white population.
In an effort to stave off what looked inevitable politically, the Cherokee and their friends began a
campaign in the courts, headed by the former Attorney General William Wirt. JILL NORGREN,
THE CHEROKEE CASES: THE CONFRONTATION OF LAW AND POLITICS 53 (1996). Similarly, after
the Civil War, Southerners opposed to the Fourteenth Amendment conducted a litigation effort to
get the Supreme Court to strike down military occupation of the South and Reconstruction before
the Amendment could be ratified. See Charles Fairman, The Oliver Wendell Holmes Devise
History of the Supreme Court of the United States, vol. 6, pt. I, Reconstruction and Reunion,
1864-88, ed. Paul A. Freund (1971), 366-67.
As each of these examples makes clear, litigation campaigns are serious efforts, which
require a bankroll and stamina. The same might be said of any effort to change the law through
litigation. Does this suggest to you any concern about bias in the law? What parties do you think
are most likely to launch and succeed in litigation campaigns? Which are least likely?
Can you think of anything that might be done to level the litigation playing field?
2. Do you think, based on what you have read, that lawmaking resulting from litigation is path
dependent? If so, can you see how anything might be at stake in the order in which cases are
brought? If so, what might be done about this problem?
3. Why do you suppose the Supreme Court wanted to consolidate all the segregation cases for a
joint hearing? Why might any court want to consolidate a group of related cases. Hint: on what
do decisions in cases turn? In what way are courts limited in making law based on cases? Can
you see a way in which having a number of cases solves the problem?
VI. Informational and Institutional Constraints in Brown
Not only do judges face difficulties in managing the agenda that comes before them; the
nature of litigation imposes some constraints on their ability to decide the cases they must. Those
sorts of constraints are the subject matter of Chapter 5; in this section we examine one
particularly acute constraint: the problem of finding facts.
Even if the justices in Brown were motivated to overturn Plessy, they needed a basis for
doing so. One basis was that some critical facts had changed since the time of Plessy. Can you
see in the Brown opinion any reliance on such facts? Where did the justices get those facts, and
how could they be certain those facts were correct?
To state the obvious, the Supreme Court is a court, not a legislature or administrative
agency. The justices were not experts in educational policy, child psychology, or school system
37
logistics, and could not rely on an extensive staff to educate them on these matters. The
adversarial process of justice limited the tools available to the Court to identify the relevant facts
about segregated elementary schools. In important respects, courts are constrained by the
information provided by the parties before the court. When you think of courts, you probably
think of them as fact-finding experts, and in many ways the adversarial system is designed to
find the truth. But still, it is limited by the facts the parties choose to present. Can you think of
ways in which the “facts” at issue in Brown were very different from those in, say, a slip-and-fall
torts suit?
Assessing the equality of educational opportunities on elementary school children was a
difficult enterprise. In Brown, the Court was faced with individual plaintiffs in lawsuits in five
jurisdictions, but the outcome in any of these suits had potential ramifications far beyond the
named plaintiffs or their individual schools. The Brown complaint filed by the Charles Bledsoe
on behalf of the NAACP brought suit on behalf of “all Negro citizens of the United States
similarly situation who reside in cities in the State of Kansas in which separate public schools are
maintained for which and Negro children of public school age, and who are so numerous as to
make it impracticable to bring them all before the Court.”49
As the Court thus noted in its
opinion, the ruling in Brown would have “wide applicability,” in part because the lawsuits were
styled as class actions.50
In short, the Supreme Court was faced with a widespread challenge to
segregated education that would involve more than comparison of the educational facilities
within any one school district or in relation to any one student. The Court was engaged in an
expansive policy dispute regarding the consequences for black children of segregated education,
and the consequences for school systems of an order to desegregate them.
By their nature, these forms of policy disputes in constitutional litigation involve
different decisional criteria than the traditional private law action involving facts about
individuals’ circumstances within the confines of a discrete legal dispute.51
Policy disputes
require courts to seek out what Kenneth Culp Davis has defined as “legislative facts”—facts
which involve “generalizations about social, economic, political, scientific, medical, or
psychological matters.”52
The Court’s role as finder of legislative facts in Brown was rendered
even more difficult because the NAACP had chosen to challenge not just whether the black and
white schools provided “equal” educational resources and facilities to students of each race, but
whether segregated schools, by their very existence, caused harm to black children such that
segregated education was inherently unequal under any circumstances. This inquiry would force
the justices into territory more typically trod by legislators or bureaucrats in the process of
49
Complaint at 3, Brown v. Board of Education of Topeka, 98 F. Supp 797 (D.Kans. 1951)(N. T-316)
50
Brown, 347 U.S. at 495. As we will see, that Brown and its accompanying suits were class actions did not limit
recalcitrant district and even circuit court judges from claiming that black students could be admitted to white
schools only on an individual basis through “pupil assignment acts.” See,.e.g., Carson v. Warlick, 238 F.2d 724, 729
(4th
Cir. 1956)(in suit to force desegregation in North Carolina schools, finding that students are admitted “as
individuals,” not as a class or group). The ingenious efforts of anti-integration forces rigged the system after Brown
to make class actions infeasible: pupil placement laws vested discretion to assign pupils to various in the school
boards and those decisions “varied from student to student.” Marcus, D., “Flawed but Noble: Desegregation
Litigation and Its Implications for the Modern Class Action,” 63 Fla. L.Rev. 657, 685 (2011).
51
For an influential discussion of this phenomenon, see Chayes,”The Role of the Judge in Public Law Litigation,”
89 Harv. L.Rev. 1281 (1976).
52
Auerbach, “Legislative Facts in Grutter v. Bollinger,” 45 San Diego L.Rev. 33, 33 (2008).
38
evaluating the societal or economic consequences of various policy alternatives. Moreover,
should the Court decide to issue an order outlawing segregated schools, it faced the question of
implementation: how would it construct an order that provided relief to the plaintiff class when
such an order might require the reconfiguration of entire school districts to eliminate segregated
education? “Racial desegregation cannot be easily separated from issues like staffing,
organization, funding, and educational philosophy.”53
The justices on the Court recognized that
the nature of the order would require additional information not typically encountered by courts.
As Justice Frankfurter explained in a memorandum to his fellow justices:
As far as fashioning a decree is concerned, the problem before the Court is
essentially a fact-finding problem, even if the ‘facts’ are not wholly simple.
To give only one illustration of the complexities of our problem, the spread of
differences in the ratios of white to colored population among the various
counties in different States is very considerable. See, for instance, the 1950
Census figures for Arkansas and Virginia. Only on the basis of facts not now
known will it be possible to judge how ills inherent in segregation of Negro
children can be terminated without substantially diminishing the quality of
education for all children. The Court does not know that a simply scrambling
of the two school systems may not work. It surely cannot assume that
scrambling is all there is to it.54
Justice Frankfurter observed that, in Brown, a social policy “with entangling passions
[were] at issue, [where] the facts ought to be dug out by an active, disinterested digger-out of
facts.” But he noted that “[a] court is greatly handicapped in doing this; a court passes on
materials that are dished up to it by the litigants. Here we cannot rely on materials that are dished
up to it by the litigants.”55
In contrast, legislators can hold hearings, subpoena expert and lay
witnesses, and appoint commissions to explore factual issues and construct policy solutions.56
In its opinion, the Brown Court relied in part on the harmful effect of segregated
education on African American children.57
At trial the plaintiffs presented expert testimony by
53
Komesar, Neil K. “A Job for the Judges” The Judiciary and the Constitution in a Massive and Complex Society,”
86 mich. L.Rev. 657, 708 (1988).
54
Memo from Justice Frankfurter to the Court, January 15, 1954 (papers of Justice Tom Clark), at 2-3.
55
Id. at 4.
56
Observations about the inadequacy of the judicial process to vet social or policy facts as effectively as the
legislative or executive branches have a long lineage. In 1933, for example, Morris Cohen observed that “[w]hen we
come . . . to the appellate work of higher courts, in which new public policies are decided under the guise of their
legality or constitutionality, we find courts making all sorts of factual generalizations without adequate information.
The facilities of our courts fo acquiring information as to actual conditions are very limited.” Cohen, Morris R., Law
and Social Order 186 (1933). See also Bikle, Henry Wolf, “Judicial Determination of Questions of Fact Affecting
the Constitutional Validity of Legislative Action,” 38 Harv. L.Rev. 6 (1924).; Horowitz, Donald, The Courts and
Social Policy (Brookings, 1977); Rosenberg, Gerald, The Hollow Hope: The Courts and Social Policy (Chicago,
1991).
57
See Maslow, Will, 1954 Address, “The Uses of Law in the Struggle for Equality” (Atlantic City, N.J.), quoted in
Auerbach, C., Garrison, L.K., Hurst, W., and Mermin, S., The Legal Process 115 n.16 (1961)(‘When the final
decision was handed down in the public school desegregation cases, it rested not on conceptual legal principles or
the legislative history of the Fourteenth Amendment or even on the sociological demonstration that in practice
segregation results in inferior schools but on the psychological finding of thwarted intellectual development.”).
39
social psychologists on this issue. One of these was Kenneth Clark, a professor of psychology at
City College in New York. Professor Clark conducted experiments to reveal the attitudes of
black and white children about their race that focused on the children’s reactions to dolls with
either white or dark complexions. In the course of these experiments, Clark presented the dolls to
children of both races and inquired which doll the children thought was the “nice” or the “bad”
doll. The following testimony about these experiments was elicited by NAACP lawyer Robert
Carter during the trial in Clarendon County, South Carolina:
THE WITNESS (Kenneth Clark): I made these tests on Thursday and Friday
of this past week at your request, and I presented it to children in the Scott's
Branch Elementary school, concentrating particularly on the elementary
group. I used these methods which I told you about--the Negro and White
dolls--which were identical in every respect save skin color. And, I presented
them with a sheet of paper on which there were these drawings of dolls, and I
asked them to show me the doll--May I read from these notes?
JUDGE WARING: You may refresh your recollection.
THE WITNESS: Thank you. I presented these dolls to them and I asked them
the following questions in the following order: "Show me the doll that you
like best or that you'd like to play with," "Show me the doll that is the 'nice'
doll," "Show me the doll that looks 'bad'," and then the following questions
also: "Give me the doll that looks like a white child," "Give me the doll that
looks like a colored child," "Give me the doll that looks like a Negro child,"
and "Give me the doll that looks like you."
MR. CARTER: "Like you?"
THE WITNESS:. "Like you." That was the final question, and you can see
why. I wanted to get the child's free expression of his opinions and feelings
before I had him identified with one of these two dolls. I found that of the
children between the ages of six and nine whom I tested, which were a total
of sixteen in number, that ten of those children chose the white doll as their
preference; the doll which they liked best. Ten of them also considered the
white doll a "Nice" doll. And, I think you have to keep in mind that these two
dolls are absolutely identical in every respect except skin color. Eleven of
these sixteen children chose the brown doll as the doll which looked "bad."
This is consistent with previous results which we have obtained testing over
three hundred children, and we interpret it to mean that the Negro child
accepts as early as six, seven or eight the negative stereotypes about his own
group. . .
MR. CARTER: Well, as a result of your tests, what conclusions have you
reached, Mr. Clark, with respect to the infant plaintiffs involved in this case?
THE WITNESS: The conclusion which I was forced to reach was that these
children in Clarendon County, like other human beings who are subjected to
an obviously inferior status in the society in which they live, have been
40
definitely harmed in the development of their personalities; that the signs of
instability in their personalities are clear, and I think that every psychologist
would accept and interpret these signs as such.
MR. CARTER: Is that the type of injury which in your opinion would be
enduring or lasting?
THE WITNESS: I think it is the kind of injury which would be as enduring or
lasting as the situation endured, changing only in its form and in the way it
manifests itself.
MR. CARTER: Thank you. Your witness.
Chief Justice Warren cited Clark’s study, along with other “modern authority” consistent
with Clark’s findings, in a footnote in support of the notion that segregation causes a sense of
inferiority and undermines African American children’s motivation to learn.58
This fact served to
contradict the claim in Plessy v. Fergusen that Plessy’s argument suffered from an “underlying
fallacy. . . that the enforced separation of the two races stamps the colored race with a badge of
inferiority.”59
According to the Plessy Court, any such assumption stems from not from the legal
segregation regime, but rather “because the colored race chooses to put that construction upon
it.”60
Soon after Brown, questions arose over the validity of Clark’s studies. At the trial,
opposing counsel’s cross examination did not thoroughly explore the scientific basis for Clark’s
causal inferences between segregated schools and the children’s attitudes, instead choosing to
focus primarily on Clark’s background, his experiences in the South, and his affiliation with
Howard University.61
But later evaluation revealed serious flaws in the studies’ methodology,
leading one scholar to observe that, by 1978, “[v]irtually everyone who has examined the
question now agrees that the Court erred” in citing the social science evidence because it “was
methodologically unsound.“62
Critics of the doll studies note, for example, that that the research
did not provide a convincing rational for its sampling strategy and thus the representative nature
of the children involved.63
Nor did it control for any variation in the students’ backgrounds that
might explain the results.64
And perhaps most fundamentally, Clark’s studies did not demonstrate
that segregated education, rather than some other environmental or social forces, caused the
school children’s consciousness of race. In particular, Clark did not present evidence regarding
58
Brown, citation to footnote.
59
Plessy, 163 U.S. 537, 551 (1896).
60
Id.
61
Kluger, R., Simple Justice, 496-500; see also Cahn, “A Dangerous Myth in the School Desegregation Cases,” 30
N.Y.U. L.Rev. 150 (1955)(describing inept cross examination of Clark by defense counsel in trial court). The
scientific validity of the results were not completely ignored on cross examination, however. See Garfinkel, “Social
Science Evidence and the School Segregation Cases,” 21 Journal of Politics 37, ## (1959).
62
Yudof, Mark G., “School Desegregation: Legal Realism, Reasoned Elaboration, and Social Science Research in
the Supreme Court,” 42(4) Law and Contemporary Problems 57, 70 (1978).
63
Cahn, supra note ##, at ## (“We are not provided here with any proof of the numerical adequacy of the sampling
or of its being a representative cross-section”).
64
Id.
41
how the study results differed between students in segregated schools in the South and integrated
schools in the North. Other research by Clark, not presented in Court, suggested that students in
the North were more pronounced in their preferences for the white doll than were Southern
children, and furthermore, that African American children’s preferences for the white doll
decreased with age.65
These findings undermine the conclusion that segregated education
produced the pattern of preferences for the white doll described by Kenneth Clark.
But the Court is hardly to be blamed for deficiencies in the Clark study. The social
scientific evidence presented at the trial court, even if flawed according to later critics, was
supported by an appendix to the NAACP’s brief entitled “The Effects of Segregation and the
Consequences of Desegregation: A Social Science Statement.” Signed by 32 social scientists,
including Kenneth Clark and his wife Professor Mamie Clark, the statement reported on the
results of existing studies showing that segregation creates feelings of inferiority in the minority
group and reinforces negative attitudes toward the minority group by the majority. It also
reported on a survey of social scientists, 90% of whom agreed that “enforced segregation is
psychologically detrimental to the members of the segregated group.”66
The social scientists’
appendix followed in the tradition of the famous “Brandeis Brief,” in which Louis Brandeis in
Muller v. Oregon, a 1908 case challenging the validity of a state law limiting the number of
hours women could work in day.67
Dominated by non-legal evidence and sources, Louis
Brandeis’s brief for the State of Oregon documented the medical and sociological evidence
concerning the impact of long work hours on women’s health and safety. According to some
scholars, the Brandeis Brief marked the beginning of the rise in the Court’s acceptance of social
science evidence in the context of appellate litigation, although according to other observers, the
brief was neither seminal nor effective.68
Thus, as we can see, judicial decisions are reliant on facts, but the presentation of those
facts is largely in control of litigants. This puts courts at the mercy of litigants and their lawyers
for the ultimate correctness of judicial decisions. This need to rely on litigant presentations is but
one of many constraints judges face in deciding cases.
FOR DISCUSSION
1. Can you think of any other constraints courts face in deciding cases?
2. In Grutter v. Bollinger, the Supreme Court considered the constitutionality of the University of
Michigan Law School’s program of affirmative action in admissions. 3M and 64 other business
corporations filed briefs maintaining that student body diversity produced educational benefits
that enhanced “skills needed in today’s increasingly global marketplace” which could be “only
be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”
65
Garfinkel, supra note ##, at ##.
66
Brief for Appellants (Appendix), Brown v. Board of Education, 347 U.S. 483 (1954), at 8 (citing Duetscher, M,
and Chein, I., “The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion,” 26 J.
Psych. 259-287 (1948)).
67
208 U.S. 412 (1908).
68
For a criticism of the traditional account of the Brandeis Brief, see Rustad, M. & T, Koenig, “The Supreme Court
and Junk Social Science: Selective Distortion in Amicus Briefs,” 72 N.C. L.Rev. 91 (1993); Bernstein, David E.,
“Brandeis Brief Myths,” 15 Green Bag 2d 9 (2011).
42
Another brief, filed by high-ranking military officials, in which the official concluded “based on
decades of experience” that the military could not achieve its principal mission unless the
military service academies and ROTC used limited affirmative action policies. How do these
statements rely upon assumptions about the causal relationship between a diverse workforce and
institutional effectiveness? What kind of evidence would you think necessary to prove such a
causal association? Is a court competent to assess such evidence? Is this particularly problematic
when such information is presented in an amicus (friend of the court) brief, rather than being the
subject of adversarial testing at trial? According to one scholar, the social science evidence in
Grutter was relied upon selectively by the justices to support their own separate conclusions. See
Auerbach, Carl A., “Legislative Facts in Grutter v. Bollinger,” 45 San Diego L.Rev. 33, 50
(2008) (‘Each justice was content with citing only the studies that supported his or her
conclusions”). What does this observation tell us about the capacity of courts to address these
types of social scientific questions? And what, if anything, can judges do about this problem?
3. Are courts unique in the constraints they face in constructing and implementing social
policies? As J. Woodford Howard noted years ago: “The literature on decisionmaking in other
organizations is replete with the same problems of defining issues and marshaling evidence, of
planning and supervising subordinates, or spinning unanticipated consequences . . . .” Howard, J.
Woodford, Book Review, The Courts and Social Policy, by Donald L. Horowitz, 1978
Washington U. L.Rev. 833, at 838. Conclusions about whether courts are competent decision
makers in certain policy areas turn, perhaps, on a comparative analysis of policy making in
legislatures or administrative agencies. Was Donald Horowitz right when he concluded that
courts were deficient policy makers?
VII. Decisionmaking on a Collegial Court
Trial judges are left to their conscience in deciding cases as the law and facts require;
appellate judges have a more difficult task. Not only must each judge on an appellate court reach
an individual decision as to the correct decision in a case, that judge also must work with her
colleagues to come to an agreement as a whole. Although some scholars see this process as
deliberative, in which a meeting of the minds (or at least a majority of those minds) reaches the
best and most principled outcome, other scholars see decisionmaking on a collegial court as in
part strategic, with judges jockeying to assemble a majority opinion.
In Brown v. Board of Education, the judges did more than work together – both
deliberatively and strategically – to come to a majority outcome: they decided any decision they
reached should be unanimous.69
To the justices, unanimity had been a constant prerogative in the
decisions involving segregation in graduate education, and when it came to desegregating entire
Southern school systems, the necessity of doing so with one voice seemed all the more
pressing.70
The unanimity of the Court in Brown has been much noted and generally admired.
69
Michael J. Klarman, Why Brown v. Board of Education Was a Hard Case, 43 Judges J. 6, 12-13 (2004) (detailing
why the Justices chose to vote unanimously in Brown I).
Dennis J. Hutchinson, Unanimity and Desegregation: Decision-Making in the Supreme Court, 1948-1958, 68 Geo.
L. J. 1, 55 (1979-80) (describing the push for unanimity in Brown II)
70
Klarman, supra note 1, at 12.
43
But unanimity has its consequences. Almost of necessity, opinions that achieve
unanimity must say less to draw in more votes. This had certainly been true in the graduate
education cases. In Sipuel, for example, the absence of a state law school seemed easily to
require granting relief for the plaintiff, and was decided in an opinion of only five paragraphs.
But the unanimous decision had to be written narrowly to avoid treading on the views of those
who (on the one hand) felt that Plessy v. Ferguson should be overruled, and those who (on the
other) believed a prior graduate school precedent was wrongly decided.71
In his memoir, Five Chiefs, Justice John Paul Stevens takes the Brown Court to task for
choosing unanimity over greater clarity in the eventual decree. “I have never been convinced,”
Stevens wrote, “that the benefits of its unanimity outweighed” what were in his view flaws in
delaying the remedy of immediate desegregation in Brown. “Even when a dissenting opinion
makes convincing arguments on the losing party's behalf, responses by the majority may not

only clarify and strengthen the Court's reasoning, but also demonstrate to the public that the
dissenter's views were carefully considered before they were rejected.”72
The deliberations over the outcome in Brown v. Board of Education inform us of the
difficulties of decisionmaking on a collegial court, a topic we take up in full in Chapter 8.
A. Brown I
Even with the benefit of the paper record left behind by the justices in their private papers
regarding the deliberations in the Brown case, we still cannot achieve certainty as to what
happened. Historian, careful historians, read the same documents and come to differing
conclusions. The justices themselves were imperfect vessels for recording what was happening,
in part because – as we will see when we discuss opinion writing – words can only take us so far
in expressing complicated and shifting views. Justices may not even fully know their own mind,
or be able to express their views without dissembling.
Still, the consensus was that when cases that formed the Brown litigation first were
considered by the justices in 1952, the Court was unlikely to have ruled to strike down
segregation in primary education. At the first conference to discuss the cases, on December 13,
1952, the justices did an unusual thing: they followed their typical practice of going around the
room expressing their views, but given the stakes, they did not take a formal vote as to
disposition.73
That conversation revealed what might be regarded as three camps: those who
would overrule Plessy and order desegregation now; those who felt the opposite, and those who
for one reason or another were wavering. Views differ as to this head count, but one might
roughly see the camps in this way (with justices who were perhaps persuadable if leadership
were asserted indicated in red):
71
Hutchinson, supra note 1, at 7.
72
JOHN PAUL STEVENS, FIVE CHIEFS, 100 (2011)
73
RICHARD KLUGER, SIMPLE JUSTICE, 585 (1975).
44
Name
of
Justice
Vinson Reed Clark Frankfurter74
Jackson Burton Minton Douglas Black
Uphold
Plessy?
Yes Yes Yes Yes Yes No No No No
In part the problem was the Chief Justice, Roger Vinson. The most optimistic account
holds that had strong leadership been asserted, all (or most) of the justices may have come
around to a decision to rule for the Brown plaintiffs. But Vinson was not a strong leader. To the
contrary, he was widely disdained by the other justices on this account.75
And Vinson himself
was inclined to uphold segregation, absent a strong showing from the other justices toward the
opposite result.
Given the focus in this chapter and book on the interplay between law and politics, it is
useful to note that among the wavering justices, it was the tension between the two that posed the
most difficulty. There can be little doubt but that Justice Felix Frankfurter personally was deeply
opposed to segregation, and although things are a little more ambiguous with Justice Robert
Jackson, he apparently would have gone along with a decision to desegregate if it were
acknowledged the Court was making a “political” rather than legal judgment.76
But both saw
Plessy and existing understandings of the Fourteenth Amendment’s framing history as serious
obstacles to ruling for the plaintiffs. And both justices, who had been part of the historical fights
waged by Franklin Roosevelt against the Supreme Court, believed the Court’s role should be a
cautious one, rather than one of activism. Jackson’s assertion that desegregation could only be
achieved through a “political” decision was particularly disturbing to Frankfurter’s mindset.77
Felix Frankfurter cut through the indecision on the Court with a tactic to buy time. He
suggested that the parties be instructed to brief the framing history of the Fourteenth Amendment
to determine whether that history indicated an intention to allow for segregated schools.
Reargument was scheduled for the fall of 1953.78
Then, fate intervened. Chief Justice Vinson died in September of 1953. Felix Frankfurter
responded by calling it “the first indication I have ever had that there is a God.”79
President
Eisenhower chose California governor Earl Warren to replace Vinson.
With Chief Justice Warren in the center chair, the Court hear reargument on Frankfurter’s
historical questions in December of 1953. The Brown Court ultimately would deem that history
74
Frankfurter would almost certainly have overruled segregation in the District of Columbia, but on grounds that did
not apply to segregation instituted by the states. Mark Tushnet & Katya Lezin, What Really Happened in Brown v.
Board of Ed., 91 Colum. L. Rev. 1867, 1905-06.
75
KLUGER, supra note 5, at 585.
76
Tushnet, supra note 6, at 1894.
77
Tushnet, supra note , at 1894.
78
KLUGER, supra note 5, at 614.
79
KLUGER, supra note 5, at 656.
45
“inconclusive.” Yet, it is possible Justices Frankfurter saw it as opening an area of constitutional
discretion to decide for the Brown plaintiffs as a matter of law rather than politics.80
There is little disagreement but that once Warren took the helm, the Court was able to
move quickly to a unanimous decision in the Brown case. Some, such as Richard Kluger, seek to
attribute this to Warren’s leadership. Others, including Warren himself, portray it as a gradual
process of working their way to the result.81
One of the more intriguing and persuasive arguments as to how the Court reached
unanimity is that once Warren expressed his views at the Court’s conference as to the outcome,
there were five clear votes to strike segregated schools, allowing the others to coalesce around
this result. Warren began the conference following the oral argument by stating that segregation
could only be sustained on the basis of racial inferiority, but the Court should move cautiously to
avoid “inflam[ing] the South more than necessary.”82
Michael Klarman explains that “[a]nyone
counting heads – and all of the justices were – immediately would have recognized that the
outcome in Brown was no longer in doubt.” At that point, concerns about the Southern reaction
to Brown “felt pressure to suppress their personal convictions for the good of the institution.” In
addition, with the responsibility for the outcome off their shoulders, Frankfurter and Jackson
may have found it easier to vote their moral convictions over their hesitation on the legal
issues.83
B. Brown II
Earl Warren’s best idea, however, may have been to move discussion away from the
merits and toward the question of the appropriate remedy. In a somewhat enigmatic entry in his
personal diary, Justice Harold Burton noted that on December 17, 1953 “the Chief Justice told
me of his plan to try [to] direct discussion of segregation cases toward the decree.”84
With
everyone focused on the remedy, the outcome on the merits slowly became a foregone
conclusion. As we have seen, the result in Brown I was announced in May of 1954, at which
point the justices set the case for reargument yet again on the question of remedy.
There can be little doubt but that the justices had grave, grave concerns about how their
decision in Brown would be taken in the South, and what that would mean in terms of seeing a
decree enforced. Over the summer before the decree re-argument, the Chief Justice had the law
clerks engage in extensive study of what a desegregation decree would actually mean in terms of
80
Hutchinson, supra note 1, at 43. Frankfurter’s law clerk at the time, Alexander Bickel, wrote an extensive
memorandum on the history, which formed the basis for a later law review article. Alexander M. Bickel, The
Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955). That article argued that while
the history was inconclusive, it left room for subsequent generations to find segregated public schools a violation of
Equal Protection of the laws. “[The Court] was able to avoid the dilemma because the record of history, properly
understood, left the way open to, in fact invited, a decision based on the moral and material state of the nation in
1954, not 1866.” Id. at 65. Bickel went on to become one of the most famous law professors in American history.
81
Hutchinson, supra note 1, at 34-35.
82
KLUGER, supra note 5, at 679.
83
Klarman, supra note 1, at 12-13.
84
Hutchinson, supra note 1, at 40.
46
such issues as redrawing school boundaries and arranging for transportation. Many justices were
worried about evasion, if not outright violence. Justice Black had stressed that “the Court should
not issue what it cannot enforce.”85
Justice Minton similarly believed “big talk in [the] opinion
and little words in [the] decree would be bad.”86
Indeed, Justice Burton expressed the view that it
was “better to get limited results which are ordered and let them serve as examples than to order
something which will not be carried out.”87
Frankfurter too stressed that the “most important
problem is to fashion appropriate provisions against evasion.”88
The justices agreed, yet again,
that it was “[v]ital to be unanimous.”89
Given their concerns about the reaction in the South, the center of gravity on the Court
was for a decision that allowed for flexibility and gave the South time to comply. Not all were of
this mind; Justice Black, for example, presciently noted that allowing time would only encourage
defiance. He was skeptical that desegregation would happen at all, and wanted simply to afford
immediate relief to the named plaintiffs only.d90
Most of the others, however, from the time they
first began to consider the case in 1952, stressed the value of a gradual approach. Justice Clark
urged “slow speed,” while Frankfurter hoped that segregation would move “by gradual
infiltration” to the more reticent areas.91
Toward the end, Frankfurter believed the Court had to
offer “criteria not too loose to invite evasion, yet with enough ‘give’ to leave room for variant
local problems.”92
Unfortunately, the justices found it extremely difficult to agree on what the decree should
say and what a gradual approach would entail. There were at least two axes of disagreement.
First, the justices were split as to whether any decree should be directed only to the named
plaintiffs, or to all members of the class.93
Second, there was debate about whether to simply
remand to allow the trial courts to fashion decrees, or whether more guidance should be given.
Warren’s view was that “some guidance” was essential: “Rather cruel to shift back and let them
flounder.”94
In the face of that disagreement, the best that could be said about the opinion in Brown II
was that it spoke in two voices at once. Most famously, the opinion ordered that the schools be
desegregated “with all deliberate speed,” a favorite phrase of Frankfurter’s. As he explained it in
another context: “mere speed is not a test of justice. Deliberate speed is. Deliberate speed takes
time. But it is time well spent.”95
The opinion was shot through with inconsistency and
equivocation. On the one hand, the Court said “it should go without saying that the vitality of
these constitutional principles cannot be allowed to yield simply because of disagreement with
them.” On the other hand, the opinion took note of the “varied local school problems” that would
85
KLUGER, supra note 5, at 740.
86
Tushnet, supra note 7, at 1927.
87
Tushnet, supra note 7, at 1927.
88
Hutchinson, supra note 1, at 51.
89
Hutchinson, supra note 1, at 55. The quote was Justice Harlan’s but many others said the same.
90
Tushnet, supra note 6, at 1926-27.
91
Tushnet, supra note 7, at 1925.
92
Hutchinson, supra note 1, at 54.
93
Tushnet, supra note 7, at 1928.
94
Hutchinson, supra note 1, at 55, quoting Frankfurter’s notes.
95
Hutchinson, supra note 1, at 58.
47
complicate compliance and said the lower courts could take account of “a variety of obstacles.”
Equitable principles were to govern, including “a facility for adjusting and reconciling public and
private needs.” All the Court demanded was “a prompt and reasonable start toward full
compliance.”
Thus, although the justices felt unanimity was “vital,” its price was sending a mixed
message as to the outcome the justices desired. Justice Stevens may have been expressing too
much certainty about a counterfactual – i.e., in insisting that a more prompt and definitive ruling
on the remedy would have altered subsequent events. It is also possible that even a majority
could not have coalesced around such a remedy if there was clarity on what it was. Still, there is
little doubt that the Court’s “all deliberate speed” formulation contributed to the chaos that
occurred next.
FOR DISCUSSION
1. Think about the difference between a 5-4 decision and a 9-0 decision of the Supreme Court.
Each is likely to be more forceful in a particular way. Can you see the difference?
2. In an idealized view of law, justices on a collegial court either (a) vote their consciences; or
(b) deliberate together to reach the best outcome. Is that our view of how matters work in a
multi-member legislative body? Can you see how some of the legislative tactics, such as logrolling,
might play in a multi-member court? Is this inappropriate?
VIII. Judicial Decisionmaking in a System of Separation of Powers
Soon enough, the Justices’ fears about the response to Brown proved warranted, as the
South engaged in a strategy of “massive resistance.” Senator Harry F. Byrd of Virginia declared
“If we can organize the Southern States for massive resistance to this order I think that in time
the rest of the country will realize that racial integration is not going to be accepted in the
South.” J. Harvie Wilkinson, Harry Byrd and the Changing Face of Virginia Politics, 1945-1966
113 (1968) (quoting Richmond Times-Dispatch, Feb. 25, 1956). Southern Governors flat out
challenged the Court. South Carolina’s James F. (Jimmy) Byrnes, who actually had sat on the
Supreme Court briefly, stated “South Carolina will not, now nor for some years to come, mix
white and colored children in our schools.” Barry Friedman, The Will of the People: How Public
Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 246
(2009). Georgia’s fiery Herman Talmadge announced “As long as I am governor, Negroes will
not be admitted to white schools.” Id. Southern states engaged in a variety of defiant and dilatory
tactics to avoid integration, from closing schools that judges ordered desegregated, to setting up
private education for white children.
The history of massive resistance offers up lessons about the role and capacity of courts
in making law and effecting change. In an idealized sense, we expect that courts will issue orders
and they will be followed. In reality, judges must rely on other actors, both within and without
the judiciary, to get the job done. Sometimes, those other actors do not cooperate. The problems
discussed here find elaboration in chapters 6 and 9. We have already seen how the justices
tailored their personal views on legal questions to anticipate disagreement among the public at
48
large. To what extent might this occur with regard to the judges on lower courts, or officials in
the coordinate branches? Is such tailoring of the law in response to an anticipated reaction
appropriate?
A. The Judicial Branch
One of the most problematic sources of resistance to the mandate in Brown was one the
justices seem not to have anticipated sufficiently: the lower courts. While elected state judges
might have been expected to follow Southern public opinion and gum up the gears of
desegregation, by this time most of the desegregation cases were being litigated in federal
courts.96
Federal judges hold their jobs for life, and ostensibly are independent of public opinion.
But even if this were true, lower federal court judges have their own views on cases that come
before them, and those views are not always congruent with those of their superiors in higher
courts.
Under the principle of “stare decisis,” lower courts are supposed to follow the rules
handed down by higher courts. End of discussion. In the world of law, the assumption is this
will happen, that between lower and higher courts there will be cooperation. But political
scientists expect political contest even among courts. They model this competitive behavior, to
see how it will affect the nature of the rules that get handed down, and whether they will be
followed.
As we have seen, in Brown the justices reached unanimity in part by agreeing on a
verdict that would not rush matters in the South. To the extent they thought about the lower
courts, their concern was about the burden the desegregation cases would pose, both logistically
and in managing the expectations of the parties.97
But some of those lower court judges didn’t
like the Brown decision any more than their non-judicial neighbors, and they did what they could
to thwart it.
Lower court resistance to Brown took many forms. It took place against a backdrop of
broader defiance by state governments, which engaged in a variety of actions ranging from
“pupil placement” or “school choice” plans to outright shutting down of the state’s schools in a
last ditch effort to avoid integration.98
For example, Virginia’s pupil placement plan created a
state board to place pupils in schools, in lieu of school boards.99
Students were presumed to stay
in their existing schools until each change was approved by the board. The board was directed to
consider a number of factors, such as the health and aptitude of each individual student. The
obvious purpose of the law was to slow if not halt the process of integration.
96
E.g., Harrison v. Day, 200 Va. 439 (1959); McKinney v. Blankenship, 154 Tex. 632 (1955). At least by the
opponents of segregation. Segregationists often took to state court to attempt to enforce statutes mandating the
defunding of integrated schools. See e.g., E.g., Cameron v. Bd. of Ed. of City of Bonner Springs, 182 Kan. 39
(1957).
97
Mark Tushnet & Katya Lezin, 91 Colum. L. Rev. 1867, 1894 (1991).
98
BASS, supra note 1, at 118-119.
99
Green v. Cnty. Sch. Bd. of New Kent Cnty., Va., 391 U.S. 430, 433 (1968).
49
Some lower courts engaged in outright defiance of Brown, to a degree remarkable in the
annals of judicial decisions. Dallas, Texas provided sharp example. In 1955 a desegregation suit
was filed, which the court dismissed. That decision was reversed by the United States Court of
Appeals for the Fifth Circuit. On return, Judge William H. Atwell, of the Northern District of
Texas, expressed his agreement with the dissenter on the appellate court, and proceeded to
dismiss the case again. He called into question the Brown decision stating that it was “based on
no law but rather on what the Court regarded as . .. “modern psychological knowledge,” with
which the judge apparently disagreed.100
While we have “Civil rights,” the judge said, “there are
also Civil wrongs.”101
Noting that “the white schools are hardly sufficient to hold the present
number of white students,” he said “it would be unthinkably and unbearably wrong to require the
white students to get out so that the colored students could come in.”102
Thus, he declined to
enter an injunction ordering desegregation and simply dismissed the suit for a second time. By
1960, matters were no better. This time, Judge T. Whitfield Davidson determined to let the
decision to enter an integration order turn on an election being held regarding integration of the
Dallas School District. If the vote were in favor of integration, then “there is no reason why the
Court may not put wholesale integration into effect.103
” However, if “the election discloses large
opposition to integration,” then the court would not do so because “the will of the people
affected” should be given “consideration and a plan [] worked out that will not be obnoxious to
those who undertake to operate and live under it.” The judge stated that while the Brown Court
had found African-American children are “given an inferiority complex by being denied the right
to sit in a class by th side of white children,” “the white child by the same psychological
processes of reasoning may be found subject to inferiority complex by reason of being required
to sit in classes with the colored child.” “The rights of one are equal to the rights of others.”104
But more often, as the Texas litigation also demonstrated, the lower courts simply
engaged in bone-numbing endless delay. And when they did, those judges often defended their
decisions based on Brown itself. One of the more famous examples occurred in Charleston, in
the case of Briggs v. Elliott.105
There, the judges accepted that “[w]hatever may have been the
views of this court as to the law when the case was originally before us, it is now our duty to
accept the law as declared by the Supreme Court.” Still, “it is important that we point out exactly
what the Supreme Court has decided and what it has not decided in this case.” The Briggs Court
quoted at length the Supreme Court’s statements in Brown II concerning deference to school
boards. And in a much quoted paragraph it stated:
It has not decided that the states must mix persons of different races in the
schools or must require them to attend schools or must deprive them of the
right of choosing the schools they attend. What it has decided, and all that it
has decided, is that a state may not deny to any person on account of race the
right to attend any school that it maintains. This, under the decision of the
Supreme Court, the state may not do directly or indirectly; but if the schools
100
Bell v. Rippy, 146 F. Supp. 485, 486 (N.D. Tex. 1956).
101
Bell 146 F. Supp. at 487.
102
Bell 146 F. Supp. at 487.
103
Borders v. Rippy, 188 F. Supp. 231, 232 (N.D. Tex. 1960).
104
Borders 188 F. Supp. at 232.
105
Briggs v. Elliot, 132 F. Supp. 776 (E.D.S.C. 1955).
50
which it maintains are open to children of all races, no violation of the
Constitution is involved even though the children of different races
voluntarily attend different schools, as they attend different churches. Nothing
in the Constitution or in the decision of the Supreme Court takes away from
the people freedom to choose the schools they attend. The Constitution, in
other words, does not require integration. It merely forbids discrimination.106
This Briggs dictum became the support for innumerable delays, in Charleston and
elsewhere.107
Remarkably, in a case from Baton-Rouge, the federal judge took the bizarre step of
lauding the delay in a litigation that had gone on already from 1956 to 1960 and claimed it was
to “the everlasting credit of the local Negro leaders of the community” that they had somehow
approved the delays. In his opinion, the judge, Gordon West, stated that he “personally
regard[ed] the 1954 holding of the United States Supreme Court in the now famous Brown case
as one of the truly regrettable decisions of all time,”108
and gave the school board yet four
months more to present a desegregation plan. When his decision wa appealed, the Court of
Appeals for the Fifth Circuit had enough, and issued a direct order, or mandamus, to the trial
court to do exactly what it said, now. Recognizing that mandamus is an extraordinary remedy,
the Court of Appeals stated that “This is such a ‘really extraordinary case.”109
The positions
taken by the lower court and the defendants “show[] a startling, if not shocking, lack of
appreciation of the clear pronouncements of the Supreme Court and of this Court.” “The courts
can ill-afford the judicial time required to consider the case of every municipal, county or parish
board of education two or three times, through the whole gamut of litigation . . . This case has
run its course.”110
The defendants were ordered to present a plan to desegregate the schools when
they reopened in the fall of 1964. Even yet, that order was for the plan to “contain as a minimum
a food faith start . . . .”
As you can see, a small number of remarkable federal judges struggled to see that the
Supreme Court’s will was done. See Jack Bass’s wonderful book on the subject, Unlikely
Heroes. Still, in the face of recalcitrance, even from federal judges, desegregation barely
occurred in the face of Brown. This situation would persist for a full decade, until the other
branches of the federal government stepped in.
B. The Other Branches
One of the ugliest examples of massive resistance occurred in Little Rock, where
Arkansas’s segregationist governor Orval Faubus whipped up the state against integration. When
a federal judge ordered a small number of black students admitted to Little Rock’s Central High
School, Faubus called out the State Guard to bar their entrance to the school. In litigation over
106
Briggs at 777.
107
E.g., Avery v. Wichita Falls Indep. Sch. Dist., 241 F.2d 230, 233 (5th Cir. 1957).
108
Davis v. E. Baton Rouge Parish Sch. Bd., 214 F. Supp. 624, 625 (E.D. La. 1963).
109
Hall v. West, 335 F.2d 481, 482 (5th Cir. 1964).
110
Hall, 335 F.2d at 484.
51
the event that subsequently reached the Supreme Court, captioned Cooper v. Aaron, 358 U.S. 1
(1958), the justices described events:
While the School Board was . . . going forward with its preparation for
desegregating the Little Rock school system, other state authorities, in
contrast, were actively pursuing a program designed to perpetuate in Arkansas
the system of racial segregation which this Court had held violated the
Fourteenth Amendment. First came, in November 1956, an amendment to the
State Constitution flatly commanding the Arkansas General Assembly to
oppose ‘in every Constitutional manner the Un-constitutional desegregation
decisions of May 17, 1954 and May 31, 1955 of the United States Supreme
Court,’ Ark.Const.Amend. 44, and, through the initiative, a pupil assignment
law, Ark.Stats. §§ 80-1519 to 80-1524. Pursuant to this state constitutional
command, a law relieving school children from compulsory attendance at
racially mixed schools, Ark.Stats. § 80-1525, and a law establishing a State
Sovereignty Commission, Ark.Stats. §§ 6-801 to 6-824, were enacted by the
General Assembly in February 1957.
The School Board and the Superintendent of Schools nevertheless continued
with preparations to carry out the first stage of the desegregation program.
Nine Negro children were scheduled for admission in September 1957 to
Central High School, which has more than two thousand students. Various
administrative measures, designed to assure the smooth transition of this first
stage of desegregation, were undertaken.
On September 2, 1957, the day before these Negro students were to enter
Central High, the school authorities were met with drastic opposing action on
the part of the Governor of Arkansas who dispatched units of the Arkansas
National Guard to the Central High School grounds and placed the school ‘off
limits' to colored students. . . .
‘The effect of that action [of the Governor] was to harden the core of
opposition to the Plan and cause many persons who theretofore had
reluctantly accepted the Plan to believe there was some power in the State of
Arkansas which, when exerted, could nullify the Federal law and permit
disobedience of the decree of this [District] Court, and from that date hostility
to the Plan was increased and criticism of the officials of the [School] District
has become more bitter and unrestrained.’ The Governor’s action caused the
School Board to request the Negro students on September 2 not to attend the
high school ‘until the legal dilemma was solved.’ The next day, September 3,
1957, the Board petitioned the District Court for instructions, and the court,
after a hearing, found that the Board’s request of the Negro students to stay
away from the high school had been made because of the stationing of the
military guards by the state authorities. The court determined that this was not
a reason for departing from the approved plan, and ordered the School Board
and Superintendent to proceed with it.
52
On the morning of the next day, September 4, 1957, the Negro children
attempted to enter the high school but, as the District Court later found, units
of the Arkansas National Guard ‘acting pursuant to the Governor's order,
stood shoulder to shoulder at the school grounds and thereby forcibly
prevented the 9 Negro students * * * from entering,’ as they continued to do
every school day during the following three weeks. 156 F.Supp. at page 225.
[At the end of that period, after a court-ordered investigation] the District
Court found that the School Board’s plan had been obstructed by the
Governor through the use of National Guard troops, and granted a preliminary
injunction on September 20, 1957, enjoining the Governor and the officers of
the Guard from preventing the attendance of Negro children at Central High
School, and from otherwise obstructing or interfering with the orders of the
court in connection with the plan. The National Guard was then withdrawn
from the school.
The next school day was Monday, September 23, 1957. The Negro children
entered the high school that morning under the protection of the Little Rock
Police Department and members of the Arkansas State Police. But the officers
caused the children to be removed from the school during the morning
because they had difficulty controlling a large and demonstrating crowd
which had gathered at the high school. 163 F.Supp. at page 16.
The Supreme Court’s description of a “large and demonstrating crowd” was somewhat of
an understatement. Judge J. Harvie Wilkinson, III brings the tension to life through the
experience of those who were there at the high school:
I tried to see a friendly face," recalled Elizabeth Eckford, one of the nine. “I
looked into the face of an old woman and it seemed friendly, but when I
looked at her again, she spat on me.” “They’ve gone in,” a white man
shouted. “The niggers are in our school," six young girls wailed hysterically.
A mother threatened to enter Central High School and bodily remove the
blacks. With the mob demanding that white students in the high school leave
and with parents withdrawing their children to the cheers of the multitude, the
police announced shortly after noon that the Negroes had been withdrawn.
Little Rock had experienced roughly three hours and fifteen minutes of racial
integration.111
In response to the chaos in Little Rock, the Supreme Court issued its strongest statement
of judicial supremacy, perhaps in all its history. The decision in Cooper v. Aaron, 358 U.S. 1
(1958), was individually signed by each of the nine justices. In it they equated their decisions
with the Constitution (see id at 18):
111
J. Harvie Wilkinson, III, The Supreme Court and Southern School Desegregation, 1955-1970: A History and
Analysis, 64 Va. L. Rev. 485, 517 (1978) (internal citations omitted).
53
Article VI of the Constitution makes the Constitution the ‘supreme Law of the
Land.’ In 1803, Chief Justice Marshall, speaking for a unanimous Court,
referring to the Constitution as ‘the fundamental and paramount law of the
nation,’ declared in the notable case of Marbury v. Madison, 1 Cranch 137,
177, 2 L.Ed. 60, that ‘It is emphatically the province and duty of the judicial
department to say what the law is.’ This decision declared the basic principle
that the federal judiciary is supreme in the exposition of the law of the
Constitution, and that principle has ever since been respected by this Court
and the Country as a permanent and indispensable feature of our
constitutional system. It follows that the interpretation of the Fourteenth
Amendment enunciated by this Court in the Brown case is the supreme law of
the land, and Art. VI of the Constitution makes it of binding effect on the
States ‘any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.’ Every state legislator and executive and judicial officer is
solemnly committed by oath taken pursuant to Art. VI, ¶3 ‘to support this
Constitution.’ Chief Justice Taney, speaking for a unanimous Court in 1859,
said that this requirement reflected the framers’ ‘anxiety to preserve it [the
Constitution] in full force, in all its powers, and to guard against resistance to
or evasion of its authority, on the part of a State.112
No state legislator or executive or judicial officer can war against the
Constitution without violating his undertaking to support it . . .
If you stop and think about it, this aspect of the Supreme Court’s opinion in Cooper v.
Aaron seems odd, does it not? Absent a way to bring the situation in Little Rock under control,
wasn’t the Supreme Court opening itself up to ridicule by insisting that its decisions were
“supreme” while all over the South officials were flaunting them?
What puts the Court’s decision into perspective is that by the time it rendered its ruling,
the situation in Little Rock was under already control, because President Eisenhower had sent in
federal troops to bring it under control. As the Court explained in its decision: “On September
25, however, the President of the United States dispatched federal troops to Central High School
and admission of the Negro students to the school was thereby effected. Regular army troops
continued at the high school until November 27, 1957. They were then replaced by federalized
National Guardsmen who remained throughout the balance of the school year. Eight of the
Negro students remained in attendance at the school throughout the school year.” 358 U.S. 1, 12
(1958).
These events highlight yet another central theme about judicial decisionmaking, which is
that even if all the judges in the judicial hierarchy are singing the same tune, the judiciary as an
institution has its limitations. Judges cannot wave a hand and see that their orders are enforced.
They depend on the help of the other branches. As with the lower courts, sometimes those
relationships are competitive and sometimes they are cooperative, but in either case, as Chapter 9
112
Ableman v. Booth, 21 How. 506, 524, 16 L.Ed. 169.
54
makes clear, it is important to consider the way this reliance on the other branches affects the law
and the decision of actual cases.
The move from a segregated to a desegregated South is very much a three-branch story.
Initially, the justices were egged on by the Executive Branch as segregation cases came to the
Court in the first half of the twentieth century. Second, as indicated above, the Court’s credibility
in the desegregation project rested ultimately in the willingness of the Executive Branch to
enforce judicial decisions. Finally, desegregation did not make much progress until Congress
also stepped in with the Civil Rights Act of 1964. It took all three branches in harmony to change
the reality on the ground.
C. The Court and the Executive Branch
As we have seen, in the 1920’s the NAACP made a decision to seek racial justice in the
courts. Part of that decision was a function of the fact that given the Southerners’ ability to
filibuster any legislation in the Senate, there were not many alternative venues in which to seek
recourse. Still, progress in the courts was slow.
African-Americans got a boost in their judicial campaign when President Harry Truman
decided to join their efforts, signing off on the idea that the Department of Justice should file
“amicus” or friend of the court briefs in the Supreme Court in key racial cases. See Lynda G.
Dodd, Presidential Leadership and Civil Rights Lawyering in the Era Before Brown, 85 Ind. L.
J. 1599, 1638 (2010). The key player in all this was the Office of the Solicitor General, or simply
the “SG.” The SG is the government’s lawyer in the Supreme Court, and it is generally accepted
that the SG has a special relationship with the justices, offering wise counsel and a careful
balanced perspective while at the same time advancing the government’s cause in the high court.
Indeed, the SG is sometimes referred to as “the tenth justice” because of this special role. There
is a burgeoning political science literature documenting what many Supreme Court advocates
know, which is that the SG holds special sway with the Court.
Truman’s decision to aid the cause of African-American equality was a function of three
things. First, he was personally appalled by stories he was told of brutality visited upon blacks,
and in particular the story of Isaac Woodard, a black military veteran who was blinded by
Southern police after an arrest for taking too long at a rest stop. Dodd, supra, at 1619. Second,
Truman knew the 1948 election was going to be a tight one, and he needed to bolster his support
among the African-American electorate. See Mary L. Dudziak, Desegregation as a Cold War
Imperative, 41 Stan. L. Rev. 61, 79 (1988). (This backfired in part when Truman’s pro-black
positions angered Southerners, leading to the breakaway “Dixiecrat” party in that election.)
Finally, Jim Crow had become an issue in American foreign policy, as communist nations in
particular delighted in publicizing how mistreatment of African-Americans was inconsistent with
the supposedly American credo of equality. See Dudziak, supra. The NAACP had filed a
complaint with the United Nations, saying “[i]t is not Russia that threatens the United States so
much as Mississippi; not Stalin and Molotov, but [Southern politicians]: internal injustice done
to one’s brothers is far more dangerous than the aggression of strangers from abroad.” Dudziak,
supra, at 95 (quoting W.E.B. du Bois, Three Centuries of Discrimination, 54 The Crisis 362, 380
(1947)).
55
Given the lockup in Congress, Truman took several steps on his own to further racial
equality, the most relevant one for present purposes being the creation of the President’s
Commission on Civil Rights. The CCR was charged with determining how “current lawenforcement
measures” at every level of government “may be strengthened and improved to
safeguard the civil rights of the people.” Dodd, supra, at 1622. The findings of the CCR paint a
hugely depressing picture of the state of affairs in the United States at mid-twentieth century.
Truman ultimately made much of the CCR’s report and recommendations in his 1948 State of
the Union message, stressing in particular the foreign policy implications:
if we wish to inspire the peoples of the world whose freedom is in jeopardy, if
we wish to restore hope to those who have already lost their civil liberties, if
we wish to fulfill the promise that is ours, we must correct the remaining
imperfections in our practice of democracy. We know the way. We need only
the will.113
One of the CCR’s recommendations, on which Truman signed off, was that the
Department of Justice be instructed to file amicus briefs in key cases. Witnesses testified how the
SG frequently refused to file such briefs, and the Attorney General explained his position that
DOJ “rarely” should participate in such cases because “[t]he ends sought by private litigants . . .
are frequently not such as should be sought or sanctioned by the Government.” Dodd, supra, at
1633. But the CCR disagreed, and its final report – To Secure These Rights – concluded
otherwise.
Immediately thereafter, the DOJ decided to file a brief in Shelley v. Kraemer, a landmark
case in which the Supreme Court decided unanimously that racially discriminatory covenants
barring selling property to blacks were unenforceable in court. As Philip Elman, a key player in
the Solicitor General’s office with close backchannel ties to Felix Frankfurter was to say in an
oral history: “It was not an ordinary brief. It was a statement of national policy.” Philip Elman &
Norman Silber, The Solicitor General’s Office, Justice Frankfurter, and Civil Rights Litigation,
1946-1960: An Oral History, 100 Harv. L. Rev. 817, 819 (1987). The brief weighed in at a bulky
150 pages. Id. One of its constant themes was the injury to American foreign policy caused by
Jim Crow. The brief earned the Administration plaudits throughout the black community, leaving
it looking for further opportunities to egg on the justices.
The SG’s next brief came in a case in which it explicitly asked the Supreme Court for the
first time to overrule Plessy v. Ferguson, the chief “separate but equal” precedent. The case was
Henderson v. United States, 339 U.S. 816 (1950), involving a federal rule regarding segregation
on trains moving in interstate commerce. In filing this brief, the SG took on another branch of
the federal government. Philip Elman, who was a key player in the SG’s office, explained in an
oral history that “We took a flat, all-out position that segregation and equality were mutually
inconsistent, that separate but equal was a contradiction in terms.” Elman & Silber, supra, at 821.
113
Dodd, supra, at 1644 (quoting Harry Truman, Special Message to Congress on Civil Rights, 1948 Pub. Papers
121 (Feb. 2, 1948)).
56
In each of the racial equality cases from Henderson to Brown, the Truman Administration
continued to file briefs urging the Court to take the action that it did.
It is impossible, of course, to answer the counterfactual question of whether the Court
would have decided these cases as it did absent Executive Branch encouragement. Intriguingly,
some of the justices seemed to resent Executive Branch involvement. Dennis Hutchinson
documents how Justice Harold Burton’s clerks urged on him the positions taken by the United
States in its amicus brief in Henderson, but there is no evidence of similar enthusiasm in other
chambers. Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme
Court, 1948-1958, 68 Geo. L. J. 1, 19-20 (1979). To the contrary, Chief Justice Vinson jotted a
note on the cover of the Solicitor General’s amicus brief in the Sweatt case, saying “certainly has
heart appeal – But this is for the head.” Richard Kluger, Simple Justice: The History of Brown v.
Board of Education and Black America’s Struggle For Equality and Justice 252 (1975).
No matter what the justices’ views about Executive Branch pressure in the early
segregation cases, it is clear that by the end of the Brown case the justices were anxious to have
the Administration’s support. The reasons for this varied, but one was clear: they anticipated
trouble in response to their decision and they understood they would need help. As events in
Little Rock made clear, that calculation was correct.
1. Giving the Truman Administration the Cold Shoulder
Initially, the Court turned a cold shoulder to the Truman Administration’s efforts to play
an important role in the Brown litigation. As it had in past cases, Truman’s SG filed an amicus
brief in the Brown cases in support of overturning Plessy, and once again stressing foreign policy
considerations.114
The SG then asked permission to participate in the initial round of oral
arguments, held in late 1952. Often when the SG asks explicit permission to participate in oral
argument, the Court grants it. In this instance, however, the Chief Justice simply returned the
request. Daniel M. Berman, It Is So Ordered: The Supreme Court Rules on School
Desegregation 61 (1966). One author has claimed this was because the Chief Justice “felt there
was already more than enough pressure on the court to abandon the ‘separate but equal’ doctrine,
which he was resolved to perpetuate.” Berman, supra, at 61.
2. About-Face: Wanting the Administration on Record
By the time of the re-argument in Brown, however, the justices were eager to hear the
Administration’s views. 345 U.S. 972, 973 (1953) (“The Attorney General of the United States is
114
Ironically, the Truman Administration almost did not file in Brown. The Solicitor General, Philip Perlman,
reportedly believed it was too early to end segregation in public schools. As Philip Elman paraphrased his views,
“Trains, dining cars, law schools, graduate schools, yes – but no to public schools: no sir!” However, the Attorney
General James McGrath was forced to resign amidst a scandal, and Perlman, who did not get on with the new
Attorney General, also resigned. When Robert Stern became the Acting SG, the case was made to the new AG that
the “Department had consistently taken the position that Plessy was wrong and should be overruled” and that “the
Department of Justice should stick to its position and file an amicus brief in the Court.” The AG agreed. See Philip
Elman, The Solicitor General’s Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960: An Oral
History, 100 HARV. L. REV. 817, 825-27 (1987).
57
invited to take part in the oral argument and to file an additional brief if he so desires.”). And for
good reason. As Justice Felix Frankfurter wrote Chief Justice Vinson, “The Conference agreed
with the point which Bob Jackson made very early in our deliberations, that the new
Administration, unlike the old, may have the responsibility of carrying out a decision full of
perplexities; it should therefore be asked to face that responsibility as part of our process of
adjudication.” Letter from Justice Felix Frankfurter to Chief Justice Fred M. Vinson (June 8,
1953) (Felix Frankfurter Papers, Library of Congress); see also Bernard Schwartz, Chief Justice
Rehnquist, Justice Jackson, and the Brown Case, 1988 Sup. Ct. Rev. 245, 252 (1988).
IChief Justice Vinson had indicated similar interest in private conversations with the new
administration. Several days after Eisenhower was inaugurated as President, the Chief Justice
spoke with then-Assistant Attorney General Warren E. Burger (later Chief Justice himself). See
Herbert Brownell & John P. Burke, Advising Ike: The Memoirs of Attorney General Herbert
Brownell 189 (1993). According to Eisenhower’s new Attorney General, Herbert Brownell, “the
chief justice said that the Supreme Court would be interested in the views of the Eisenhower
administration on the pending case of Brown v. Board of Education.” Id. Brownell further
speculated that “Vinson was soliciting the new administration’s legal views to tip the balance,
either by encouraging the waverers on the Court to overturn Plessy if the Eisenhower
administration was on that side of the issue or to dodge the question until public and political
support were greater and the Court would not have to risk its prestige in such a controversial
area.” Id.
3. ‘The Eisenhower Administration’s (Reluctant) Participation in Brown
The justices were well-advised to seek out Eisenhower’s views on Brown. There was
plenty of hints that the President did not feel the time was ripe for ordering desegregation of
public schools. The new president had spent a lot of time in the South, and had warm friendships
there with white Southerners. At a dinner at while Brown was under consideration, the President
indicated his opposition to court-ordered desegregation; the Chief Justice, reported Eisenhower
saying “[t]hese are not bad people. All they are concerned about is to see that their sweet little
girls are not required to sit in school alongside some big overgrown Negroes.”)).115
Once the Court asked for the Eisenhower Administration’s views, the Administration
proceeded reluctantly. The President did not want to participate, arguing “the federal government
was not a party to the action,” but Attorney General Brownell made clear how awkward it would
be to refuse the Court’s invitation. Brownell & Burke, supra, at 190. Even after Eisenhower
acquiesced, however, the administration declined to take a stance on the issue of desegregation
itself, doing nothing other than answering the specific questions historical questions the Court
put. Eisenhower ultimately agreed with his Attorney General that if the government was pressed
at oral argument, it could say it adhered to the prior administration’s position that Plessy should
be overruled.
115
See JIM NEWTON, JUSTICE FOR ALL: EARL WARREN AND THE NATION HE MADE 315 (2006) (citing EARL
WARREN, THE MEMOIRS OF CHIEF JUSTICE EARL WARREN 291 (1977).
58
At oral argument, Justice Douglas had to chase the lawyer arguing the case, Assistant
Atorney General J. Lee Rankin, to get a clear answer that it supported overruling Plessy. Finally,
he elicited exactly what he wished:
Douglas: My question went further than that. It was, what are the merits,
whether the Department of Justice had taken a position?
Rankin: . . . in order to answer your question specifically, it is the position of
the Department of Justice that segregation in public schools cannot be
maintained under the Fourteenth Amendment, and we adhere to the views
expressed in the original brief of the Department in that regard. We did limit
our brief in our –
Douglas: I just wanted to clear up the confusion in my mind.116
When it came to Brown II, however, regarding the remedy the Court should impose, the
Eisenhower administration was quite clear in its view that matters should not be rushed.
Eisenhower actually handwrote the first draft of this language, which ultimately appeared in the
Administration’s brief in Brown II:
[Segregation is] an institution, it may be noted, which during its existence not
only has had the sanction of decisions of this Court but has been fervently
supported by great numbers of people as justifiable on legal and moral
grounds. The Court’s holding in the present cases that segregation is a denial
of constitutional rights involved an express recognition of psychological and
emotional factors; the impact of segregation upon children, the Court found,
can so affect their entire lives as to preclude their full enjoyment of
constitutional rights. In similar fashion, psychological and emotional factors
are involved – and must be met with understanding and good will – in the
alterations that must now take place to bring about compliance with the
Court’s decision.117
Indeed, although Eisenhower did indeed send troops into Little Rock, his support was grudging.
Not long beforehand, Ike had said “I can’t imagine any set of circumstances that would ever
induce me send federal troops into . . . any area to enforce the orders of a federal court.”118
When
he did act he was careful to make clear that his rationale was enforcing order and judicial orders,
and not the issue of desegregation itself. His private notes on the situation in Little Rock stated:
116
Brown v. Board: The Landmark Oral Argument Before the Supreme Court 249-50 (Leon Friedman ed., The New
Press, 2004).
117
Elman & Silber, supra, at 842.
118
Mary L. Dudziak, The Little Rock Crisis and Foreign Affairs: Race, Resistance, and the Image of American
Democracy, 70 S. Cal. L. Rev. 1641, 1678 (1997) (quoting Dwight D. Eisenhower, The White House Years:
Waging Peace, 1956-1961 170 (1965)).
59
“Troops – Not to enforce integration. But to prevent opposition by violence to order of court.”119
He stressed to public officials that “my relationship to the problem at the moment is not one of
attempting by force of arms to advance, impede, or otherwise affect the course of desegregation
in the Nation’s school.”120
In his televised remarks he went out of the way to emphasize that
“[i]n [the South] I have many warm friends, some of them in the city of Little Rock.”121
And
Eisenhower stressed that the issue was the unacceptability of violent interference with court
orders, and also the implications for foreign policy: “At a time when we face a grave situation
abroad because of the hatred that Communism bears toward a system of government based on
human rights, it would be difficult to exaggerate the harm that is being done to the prestige and
influence, and indeed to the safety, of our nation and the world. Our enemies are gloating over
this incident and using it everywhere to misrepresent our whole nation.”122
D. The Three-Branch Solution
Throughout the Brown proceedings, Justice Robert Jackson had a somewhat idiosyncratic
perspective, but one that proved ultimately prescient. He felt that the lead on the issue should be
taken by Congress. He conceded that in the absence of congressional action, the burden fell on
the justices to end segregation, but he felt the better course of action was for Congress to act.
Here is Justice Jackson, questioning Assistant Attorney General Rankin at the re-argument in
Brown I:
Jackson: Before you go into that, isn’t the one thing that is perfectly clear
under the Fourteenth Amendment, that Congress is given the power and the
duty to enforce the Fourteenth Amendment, by legislation. . . .
Rankin: No, there is no question but—
Jackson: And the other thing that is clear is that they have never done, have
never enacted an act that deals with this subject.
Rankin: There is no question but what [sic] Congress has the power under
section 5 to enforce the Fourteenth Amendment.
Jackson: And if the Amendment reaches segregation, they have the power to
enforce it and set up machinery to make it effective. There is no doubt about
that, is there, and it hasn’t been done.
119
Handwritten notes by President Eisenhower on decision to send troops to Little Rock (Sept. 1957) (Dwight D.
Eisenhower Presidential Library & Museum), available at
http://www.eisenhower.archives.gov/research/online_documents/civil_rights_little_rock.html.
120
Letter from President Dwight Eisenhower to Senator John C. Stennis (Oct. 7, 1957) (Dwight D. Eisenhower
Presidential Library & Museum), available at
http://www.eisenhower.archives.gov/research/online_documents/civil_rights_little_rock.html.
121
Press release, containing speech on radio and television by President Eisenhower (Sept. 24, 1957) (Dwight D.
Eisenhower Presidential Library & Museum), available at
http://www.eisenhower.archives.gov/research/online_documents/civil_rights_little_rock.html.
122
Press release, containing speech on radio and television by President Eisenhower (Sept. 24, 1957) (Dwight D.
Eisenhower Presidential Library & Museum), available at,
http://www.eisenhower.archives.gov/research/online_documents/civil_rights_little_rock.html.
60
Now if our representative institutions have failed—is that the point?
Rankin: No, because this Court has in our understanding concurrent
jurisdiction.
Jackson: Have you taken it over?
Rankin: No. You both have a responsibility, and neither one can give that
responsibility up to the other in our conception. There is a concurrent
responsibility, and the Court has recognized it in numerous cases where it has
interpreted and applied the Fourteenth Amendment.
It has not waited for Congress to act under section 5, but it has looked
at section 1 and the other sections of the Amendment to see what they meant,
and the force of that language that was used at that time in adopting the
intention and purpose of the framers as expressed and tried to give a liberal
interpretation to carry out the purposes that were pervading in the passing of
the Amendment.
Jackson: I suppose that realistically the reason this case is here was that
action couldn’t be obtained from Congress. Certainly it would be here much
stronger from your point of view if Congress did act, wouldn’t it?123
As it happened, Justice Jackson was right on target: desegregation moved at a glacial
pace until Congress adopted the Civil Rights Act of 1964. Although President Eisenhower lent
force to the courts in Little Rock, he sat on the sidelines of many other sites of violent conflict
over desegregation efforts. As the historian Michael Klarman explains, “Eisenhower urged that
desegregation be resolved locally, and he denied a role for the federal government in ‘the
ordinary normal case of keeping order and preventing rioting.’” Michael J. Klarman, From Jim
Crow to Civil Rights: The Supreme Court and Racial Equality 324 (2004). Congress too had
done nothing to foster the case of segregation. As a result, a decade after the decision in Brown,
only one percent of African-American students in the South attended desegregated school. Says
Klarman, “[t]he federal judiciary, acting without any congressional or much presidential backing,
had proven powerless to accomplish more.” Id. at 362-63.
Ultimately, it was the civil rights movement that prompted Congress to act. The
movement took off with sit-ins at lunch counters, and then bus trips by northern “Freedom
Riders” to the South. Rallies led by Martin Luther King Jr. in Birmingham, his incarceration
there, and a bombing of a black church killing four teenagers galvanized the country. In the
spring of 1963, President Kennedy had declared it a moral imperative to the country to act, and
that fall sent the civil rights bill to Congress. When JFK was killed in Dallas, his successor
Lyndon Johnson lent all his weight to enacting the bill. Barry Friedman, The Will of the People:
123
Brown v. Board: The Landmark Oral Argument Before the Supreme Court 243-44 (Leon Friedman ed., The New
Press, 2004). Philip Elman succinctly summarizes Justice Jackson’s views at the time: “Let Congress deal with the
problem; it’s too difficult for judges. We can’t preside over so massive a reconstruction of state educational
systems.” Elman & Silber, supra, at 824.
61
How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the
Constitution 248-49 (2009).
Adopted over the longest filibuster in history, the Civil Rights legislation Congress
ultimately adopted provided new teeth to see that desegregation took place in the South. The Act
authorized the Attorney General, upon complaint, “to institute for or in the name of the United
States a civil action in any appropriate” federal court. Civil Rights Act of 1964, Pub. L. No. 88-
352, § 407, 78 Stat. 241 (codified at 42 U.S.C. § 2000c-6 (2000)). The law also mandated that
“such court shall have and shall exercise jurisdiction of proceedings instituted pursuant to this
section.” Id.
In the aftermath of the Civil Rights Act of 1964, the situation on the ground changed
dramatically. The Attorney General brought lawsuits, and the Department of Health, Education
and Welfare threatened to cut off education funds. As a result, by 1966 the number of AfricanAmerican
students in the South attending a desegregated school rose to over 6%, to 32% in 1969,
and over 90% in 1973.124
FOR DISCUSSION
1. As must be apparent at this juncture, sometimes the Court acts cooperatively with the other
branches, and sometimes the branches disagree about policy. Why is it so important for the Court
under some circumstances to align itself with the other branches? What steps can it take to do
so?
2. Somewhat more surprisingly, appellate courts have to grapple with disagreement from the
lower courts as well. What are the proper bounds of disagreement? And can you think of any
methods an appellate court can use to prevent it?
3. The facts of this section suggest that courts, even the Supreme Court, suffer from certain
power deficiencies. Alexander Hamilton famously called the judiciary, “the least dangerous
branch.” Can you see why this might be so? What do you learn on that score from this section?
4. How do you feel about judicial decisions being subject to support from the other branches?
From the lower courts?
IX. Public Opinion and Judicial Decisionmaking
In his engaging book, From Brown to Bakke: The Supreme Court and School Integration,
1954-1978, J. Harvie Wilkinson writes that “[]in assessing the Supreme Court’s role in school
integration, attention to its opinions is essential.” “Yet,” he continues, “the broader perspective is
just as important:”
“One must look beyond the walls of doctrine to the halls of Congress and
statehouses, to the chambers of district judges, to the desks of editors,
124
Klarman 363
62
historians, and sociologists, and, most important, to high school corridors,
civic auditoriums, country stores, suburban ranchhouses, and city
streetcorners.”125
Why is this so? Because, he argues, this is where “the verdict on the Court is delivered. It
is there that the American people form a jury on the judge.”126
But why should it matter what the American people think of the judges, who are – after
all – appointed for life and ostensibly immune to public opinion? The reason: because that
immunity is only ostensible: in many ways the verdict of the people helps shape the law itself.
It would be impossible to have come this far and missed the fact that an important
influence on judicial decisionmaking is public opinion. The effect can be both direct and indirect.
Truman’s actions toward racial desegregation were triggered in part by political calculations, and
Truman’s Commission on Civil Rights – one of the actions he took – led to the Administration
filing amicus briefs urging the justices to overrule Plessy v. Ferguson.127
This is about as indirect
and yet meaningful as one can imagine. On the other hand, as the justices contemplated the
remedial decree in Brown II, we have seen the extent to which anticipated public reaction in the
South influenced their decisionmaking – quite directly.
There are two very important sorts of questions posed by the influence of public opinion
on judicial decisionmaking. The first is squarely in the wheelhouse of social scientists. What are
the mechanisms by which public opinion comes to influence judicial decisions, both the
outcomes and the legal rules in cases? Is it the appointment process for federal judges, or the
desire of judges to be appreciated by their peers, or something else entirely?
The second set of questions is more normative (and may turn in part on the first): how
ought we to feel about the relationship between public opinion and judicial decisions? At least in
some areas, after all, we believe judges should be entirely uninfluenced by what the public
thinks. For example, no serious person believes (we hope) that a jury’s verdict of guilty or
innocent in a high-profile murder case, one in which the prosecution is seeking the death penalty,
should be a function of public sentiment that the defendant is guilty and deserves to be executed.
Similarly, one prominent theory of constitutional law holds that the very reason for allowing
judges to interpret the meaning of the Constitution is because the judges stand separate from
ordinary politics, and can reach decisions that protect minorities against majority will.128
. Yet, at
times even the doctrine of the law itself incorporates public opinion, at least obliquely, in
deciding what the rule should be. Thus, for example, when the Supreme Court decided that it
125
J. HARVIE WILKINSON, FROM BROWN TO BAKKE: THE SUPREME COURT AND SCHOOL INTEGRATION, 1954-1978,
at 6 (1981).
126
Id.
127
See MARY L. DUDZIAK, COLD WAR CIVIL RIGHTS: RACE AND THE IMAGE OF AMERICAN DEMOCRACY 23–24
(2000); Brief for the United States at Amicus Curiae Supporting Petitioners, Brown v. Board of Education, 347 U.S.
483 (1954) (Nos. 1, 2, 3, 4, 5), 1952 WL 82045.
128
See, e.g., BRUCE ACKERMAN, WE THE PEOPLE, VOLUME I: FOUNDATIONS (1991) (favoring a “dualist” view of
judicial review in which judges decide constitutional questions in a fashion separate from “ordinary politics”); JOHN
HART ELY, DEMOCRACY AND DISTRUST (1980) (advancing a theory of judicial review in which judges act, among
other things, to represent minority viewpoints shut out from the political process).
63
was unconstitutional to execute people who committed murder as a minor, or when it decided
that states could not criminalize intimate practices between people of the same sex, it looked to
evidence of shifting social mores.129
These are the sorts of questions we explore in Chapter 10 of this book. For now, we
introduce those themes by looking at two aspects of the relationship between Brown and public
opinion. First, we briefly recap the argument made by several scholars that the Brown decision
itself was driven by public opinion and received public support.130
Then, we spend some time
talking about the road from Brown to recent decisions regarding affirmative action and school
assignment in education, bringing us full circle to where this chapter began: by asking what it is
that we can learn about the meaning of Brown v. Board of Education and seeing how that
meaning has shaped the law.
A. Brown and Public Opinion
As controversial as the Brown decision was in some quarters – particularly the South –
from the time it was decided polls suggested the justices’ decision enjoyed majority support.
Polling over the summer indicated a narrow majority favored the outcome in Brown, and from
there on support grew.131
This is intriguing because when some scholars talk about the rule of
judicial review in protecting minority interests against majority will, Brown often is cited as a
chief example. It pays, however, to recall that de jure school desegregation was a regional affair,
one that by the time of Brown was heavily under attack elsewhere. Derrick Bell, a skeptic of the
minority protection thesis about judicial review, advanced a competitor view, that of “interest
convergence.”132
The rights of minorities, he suggests, will be upheld only when it is in majority
interests to do so.133
Assuming Brown reflected majority views, what were the forces that brought the country
to this place in the mid-1950s? Were they the same forces influencing the justices? Can we trace
any relationship?
Scholars today agree that World War II and its aftermath had an enormous influence on
national views about race, and most likely the Supreme Court’s decision in Brown. Start with
129129
See Roper v. Simmons, 543 U.S. 551, 565 (2005) (reviewing formal and informal state prohibitions on
executions of defendants for crimes committed as juveniles as “evidence of national consensus against the death
penalty for juveniles”); Lawrence v. Texas, 539 U.S. 558, 571–72 (2003) (observing that “our laws and traditions in
the past half century . . . show an emerging awareness that liberty gives substantial protection to adult persons in
deciding how to conduct their private lives in matters pertaining to sex”).
130
See, e.g., Mary L. Dudziak, Desegregation as a Cold War Imperative, 41 STAN. L. REV. 61, 65 (1988); BARRY
FRIEDMAN, THE WILL OF THE PEOPLE (2009); MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE
SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004) .
131
See KLARMAN, supra note 6, at 310 (citing GEORGE H. GALLUP, THE GALLUP POLL: PUBLIC OPINION, 1935–
1971, at 2:1249–50 (1972); Lloyd M. Wells, The Supreme Court and Public Opinion, 1937 – 1957, in THE POLITICS
OF JUDICIAL REVIEW, 1937 – 1957, at 36 (John M. Church ed., 1957).
132
Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518
(1980).
133
Id. at 523 (“[The] principle of ‘interest convergence’ provides: The interest of blacks in achieving racial equality
will be accommodated only when it converges with the interests of whites.”).
64
Harry Truman. It is true that his support for the rights of African-Americans was founded in
pragmatic politics. Given the “Great Migration” of African Americans from the rural South to
the more urban areas of the country in the twentieth century, he and his advisors could see the
importance of the black vote to the 1948 presidential election.134
But as noted earlier, Truman
was also quite personally affected by the treatment returning war veterans received at the hands
of Southerners. In this he was not alone; much of the country undoubtedly saw the injustice of
allowing blacks to fight on the battlefield then denying them basic equality on return.
World War II changed public attitudes toward race more profoundly. The overt and
horrifying racism of Nazi Germany caused Americans to turn the mirror toward their own
practices.135
In the aftermath of the war, race was becoming a more visible issue, one not swept
easily under the table. Gunnar Myrdahl summed matters up in his 1944 masterpiece, The
American Dilemma, writing, “When we say there is a Negro problem in America, what we mean
is that the Americans are worried about it. It is on their minds and on their consciences.”136
Then came the Cold War, itself an after-effect of World War II, and foreign policy
imperatives began to drive both public opinion and official U.S. government positions in matters
of race. In 1947, the NAACP filed “An Appeal to the World” with the United Nations, arguing
“It is not Russia that threatens the United States so much as Mississippi.”137
Meanwhile,
Communist (and other) countries had a field day pointing to American hypocrisy about civil
liberties and equal treatment. This was complicating foreign policy and was a constant theme in
Truman Administration filings before the Supreme Court on race issues.138
In its brief in Brown
the Truman Administration said “It is in the context of the present world struggle between
freedom and tyranny that the problem of racial discrimination must be viewed.”139
Historian
Mary Dudziak has described at great length the “cold war imperative” that drove public opinion
toward the decision in Brown, consistent with Bell’s interest convergence thesis.140
No surprise then that much of the public applauded Brown. The decision was seen as
fundamentally right in moral terms. But it was also seen as appropriate in light of global politics
at the time. Calling Brown the most important decision of all time except for Dred Scott (which
limited Congress’s ability to deal with slavery and was at least one of the indirect catalysts of the
Civil War) Time magazine noted the “many countries . . . where U.S. prestige and leadership
134
See KLARMAN, supra note 5, at 173–74; Dudziak, supra note 5, at 79.
135
See PAUL G. KAUPER, FRONTIERS OF CONSTITUTIONAL LIBERTY 210 (1956) (“A nation at war with Hitler’s
Germany could not reconcile racism with its democratic credo . . . .”).
136
GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY 26 (1962).
137
Dudziak, supra note 5, at 95 (quoting the petition as reprinted in W.E.B. du Bois, Three Centuries of
Discrimination, 54 THE CRISIS 362, 380 (1947)).
138
See Philip Elman & Norman Silber, The Solicitor General’s Office, Justice Frankfurter, and Civil Rights
Litigation, 1946–1960: An Oral History, 100 HARV. L. REV. 817, 819 – 21 (1987)
139
Brief for the United States at Amicus Curiae Supporting Petitioners, Brown v. Board of Education, 347 U.S. 483
(1954) (Nos. 1, 2, 3, 4, 5), 1952 WL 82045.
140
Dudziak, supra note 5, at 64 (citing Derrick Bell’s interest convergence theory as the framework for
understanding desegregation as a Cold War imperative).
65
have been damaged by the fact of U.S. segregation.”141
Thus, Time concluded, Brown “will come
as a timely reassertion of the basic American principle that ‘all men are created equal.’”142
B. From Brown to the Present
Still, as we have noted, Brown today is a paradoxical decision. On the one hand, it is
iconic; anyone that challenges the ruling will be taken immediately as possessing fringe views.
On the other hand, what Brown decided – or rather, the basis for the decision – often is the
subject of virulent dispute. Was Brown about color blindness, or about racial subordination? I.e.,
did Brown hold that school segregation violated a rule that race should almost never be the basis
for legislative distinctions? Or, was the evil of school segregation that it stigmatized a minority
race? Which of these interpretations one attaches to Brown may well determine whether race
conscious school primary and secondary school assignment, or affirmative action in higher
education, is permissible.
How we understand Brown today necessary is a function of what happened in the
aftermath of Brown itself. In Regents of the University of California v. Bakke, the first case in
which the Supreme Court dealt with the issue of affirmative action programs, Justice Lewis
Powell wrote of the Congress that drafted Title VI of the Civil Rights Act of 1964:
There simply was no reason for Congress to consider the validly of
hypothetical preferences that might be accorded minority citizens; the
legislators were dealing with the real and pressing problem of how to
guarantee those citizens equal treatment.143
The same was undoubtedly true of the justices in Brown. Their goal was to produce a
formal statement of legal equality, and their great dread was that any order they issued would be
defied. Nothing suggests they were looking ahead to the problem of race being used in a way
calculated to assist members of a racial minority.
Once Congress passed the 1964 Civil Rights Act and school desegregation began in
earnest, the nature of the debate also began to change. Desegregation litigation moved from the
South to the North, and with it the most common form of an integration remedy: school bussing.
Bussing proved enormously unpopular. Sometimes this was driven by simple racism; it became
clear in places like Boston that racism was hardly a phenomenon reserved to the South.144
Even
if racism were not a factor, bussing was costly, often requiring fees or taxes, neither of which is
typically popular with voters. Finally, and perhaps most important, people wanted to go to
school, and send their kids to school, in their own neighborhoods. Even while approving of
141
To All on Equal Terms, TIME, May 24, 1954, at 21.
142
Id.
143
Regents of the Univ. of California v. Bakke, 438 U.S. 265, 285 (1978).
144
RONALD P. FORMISANO, BOSTON AGAINST BUSING: RACE, CLASS, AND ETHNICITY IN THE 1960S AND 1970S 1
(“In 1974. . . South Boston became as much a symbol of white racism as Selma, Alabama had been in 1964. Wild,
raging mobs of white men and women confronted armies of police, while youths in their teens and younger hurled
rocks, bottles, and racial epithets at buses carrying terrified black youngsters to school.”).
66
bussing as a remedy in Swann v. Charlotte-Mecklenburg Board of Education, the Supreme Court
acknowledged “All things being equal, with no history of discrimination, it might well be
desirable to assign pupils to schools nearest their homes.”145
As desegregation became a reality, moved north, it and was implemented through
bussing, it altered the very demographics of America. Some parents began to move their children
to private schools, to avoid integration or bussing or both. Many families simply fled urban areas
for the suburbs, in a phenomenon described as “white flight.”146
Both of these made it more and
more difficult to develop plans that would achieve real integration.
Then, racial tensions spilled over onto a new front, what was called affirmative action (by
proponents) and reverse discrimination (by opponents). 147
These programs revolved around
goods government had to dispense, be they government contracts or jobs. But public and private
universities and colleges also adopted affirmative action programs for their entering classes.
Opponents saw these programs as zero-sum – when a minority contracting firm got a job, or
there was a racial preference for hiring firefighters, some whites believed they necessarily lost
out.
Racial issues started to play a role in altering the face of American politics. When
Richard Nixon ran for president in 1968, the Republican Party adopted a “Southern strategy” in
which it appealed to discontented white southern Democrats, pulling them into the Republican
fold.148
With the ghettos burning, and crime rates on the rise, Nixon attacked the Supreme
Court’s liberal rulings.149
Nixon’s Republican successors would employ similar tactics,
continuing to focus on issues that were coded racially, if not discussed in explicit racial terms,
like crime and affirmative action.150
Over time, these Republican presidents reshaped the Supreme Court – from the late
1960s through the mid-1990s. While Jimmy Carter had no vacancies on the Supreme Court to
fill, Nixon had four, Reagan had three more, and George Herbert Walker Bush had two.
Although not infallibly so, their appointees tended to vote from the middle to the right of the
Court, particularly on issues of race and crime. It was during this period that the meaning of
Brown began to take shape, in American politics and in the law.
145
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 28 (1971).
146
See JAMES S. COLEMAN ET AL., URBAN INSTITUTE, TRENDS IN SCHOOL SEGREGATION, 1968-73 (1975)
(concluding that desegregation bussing plans increased white flight out of urban areas and, as a result, increased
racial imbalance in public schools).
147
See Stuart S. Taylor Jr., A Job Is a Job, Is a Job, Until It's a Job Denied, N.Y. TIMES, July 24, 1984, at 16 (“In
political Washington, it sometimes seems almost everybody likes ‘affirmative action,’ nobody likes ‘reverse
discrimination,’ and hardly anybody likes ‘quotas.’ . . . What is going on is a favorite tactic in policy debates:
Jousting for the semantic high ground.”).
148
See KEVIN P. PHILLIPS. THE EMERGING REPUBLICAN MAJORITY (1969) (explaining and justifying Nixon’s
Southern strategy).
149
See FRIEDMAN, supra note 5, at 276–78.
150
See DAN T. CARTER, FROM GEORGE WALLACE TO NEWT GINGRICH: RACE IN THE CONSERVATIVE
COUNTERREVOLUTION xiv (1996); THOMAS BYRNE EDSALL WITH MARY D. EDSALL, CHAIN REACTION 177 (1991);
NICHOLAS LAHAM, THE REAGAN PRESIDENCY AND THE POLITICS OF RACE 9 (1998).
67
1. Limits on the use of race: the 1970s
To see how Brown came to be understood in the law, it is important to know something
about how race cases are litigated. When any government action is challenged on the ground that
it discriminates – be it on the basis of age, race, type of business one has, or anything else, courts
ask two questions: does the government have a reason for favoring group X over group Y? And
is the government’s purpose achieved by drawing the line that it did. For example, if the
government hands out drivers’ licenses, it is constitutional to have a vision test? The answer
seems obvious. Safe streets are important and a vision test does much to accomplish make sure
they remain safe.
What is key in these disputes is what is called the “level of scrutiny” that a reviewing
court will employ. Sometimes courts look very closely at the reasons for government
discrimination; sometimes they don’t look closely at all. And how closely they look will often
determine the way a case will be resolved. Think again of drivers’ licenses, but now consider the
requirement that a driver be sixteen years old. While achieving safe streets requires some degree
of maturity and ability from drivers, why is sixteen the magic number? What about a mature
fifteen year-old, or an immature eighteen year-old? When the government discriminates on the
basis of age like this, courts usually do not look very closely; if they looked too close, many laws
might be in jeopardy.
On matters of race, however, it has long been the rule that courts apply “strict scrutiny,”
which is to say they look very, very closely to determine if drawing a racial line is justifiable.
This is in part because we believe that race rarely is an acceptable basis for differential treatment.
Also, strict scrutiny also helps “smoke out” legitimate grounds for discrimination from pure
racial animus.
But here’s the problem: what about when racial lines are drawn in order help racial
minorities rather than hurt them? That is the issue in affirmative action cases, and it also spills
over into school assignment cases. It is here that the contest over Brown’s meaning arises most
sharply.
In 1978, the Supreme Court, in the Bakke affirmative action case, rejected the racial
subordination view of Brown in favor of the “colorblind” understanding of the Constitution. At
issue in Bakke was UC Davis Medical School’s affirmative action policy, which held a certain
number of seats for minority applicants.151
Allan Bakke, a white male who alleged he had been
denied admission to medical school because of the seats reserved for blacks, challenged the
program and the Supreme Court struck it down.152
The Bakke Court was wildly fractured, giving Justice Lewis Powell – a Nixon appointee
– the final word, and what he had to say shaped battles over race into the present. The four
conservative justices would never have even reached the constitutional question; they voted that
the UC Davis program was invalid under Title VI of the 1964 Civil Rights Act, which provides
that “No person in the United States shall, on the ground of race, color, or national origin, be
151
Bakke, 438 U.S. at 269–76.
152
Id.
68
excluded from participation in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance.”153
The rest of the Court,
however, believed the Civil Rights Act only prohibited what the Constitution would forbid.154
And so the question they addressed was: is the same level of strict scrutiny applied to racial lines
drawn not to harm or subordinate minorities, but to help them. The four liberal justices felt that
“benign” uses of race classifications – not to hurt or subordinate a racial minority but to help it –
were entitled to less careful scrutiny, and that under that level of scrutiny the University had an
acceptable purpose in remedying past discrimination.155
The Court was 4-4, so the ultimate result
rested on Justice Powell.
In Bakke, Justice Powell made a number of legal moves that would limit the ability of
governments to draw racial lines to help racial minorities or further societal integration. First, he
came down squarely on the side of “the Constitution is “colorblind,” rejecting the racial
subordination view.156
Thus, any classification by race would receive strict scrutiny. Then,
Justice Powell decided that in general – with the one exception discussed below – racial
classifications could only be used to remedy the effects of past discrimination. But while UC
Davis argued it was doing this, Justice Powell held that such remedies only were allowed when
the actor doing the remediating had been found to have discriminated itself in the past, which
was not documented with regard to UC Davis. “We have never approved a classification that
aids persons perceived as members of relatively victimized groups at the expense of other
innocent individuals in the absence of judicial, legislative, or administrative findings of
constitutional or statutory violations.”157
However, Justice Powell did believe that a university could sometimes take some account
of race in making admissions decisions if the purpose was to further “diversity” in the school
environment. The traditional function of the university as a place for teaching values and
fostering discourse allowed some leeway to ensure that the student body was diverse in ways that
would meet this mission. Justice Powell quoted from Harvard’s affirmative action plan, which he
held up as a model: “A farm boy from Idaho can bring something to Harvard College that a
Bostonian cannot offer. Similarly, a black student can usually bring something that a white
person cannot offer.”158
Even yet, Justice Powell carefully circumscribed the bounds of such use
of race by a university. Strict quotas and decisions based only on race were out; schools could
consider race as part of an analysis of the whole individual.159
During that same period in which Bakke was decided – the 1970s – similar principles
were seriously circumscribing the bounds of school desegregation remedies. How was one to
achieve racially-integrated schools in the face of phenomena like white flight? In Detroit, where
many whites had fled the urban center for the suburbs, making it difficult to achieve any sort of
153
Id. at 412–13 (opinion of Stevens, J.); 42 U.S.C. § 2000d et seq.
154
Bakke, 438 U.S. at 328.
155
Id. at 359–61.
156
See id. at 289–90 (“The guarantee of equal protection cannot mean one thing when applied to one individual and
something else when applied to a person of another color.”).
157
Id. at 307.
158
Id. at 316.
159
Id. at 317 (“[R]ace or ethnic background may be deemed a “plus” in a particular applicant's file, yet it does not
insulate the individual from comparison with all other candidates for the available seats.”).
69
racial mix, the trial court ordered bussing across school district lines. But in the 1974 decision in
Milliken v. Bradley, the Supreme Court held that forced inter-district remedies were
impermissible in the absence of proof that the discrimination between districts was the result of
an intentional state policy.160
2. The 1990s: school desegregation and affirmative action in higher education
diverge?
By the mid-1990s, any aggressive attempts to ensure truly integrated schools had reached
a political and legal roadblock. The country had expressed its discontent with bussing as a
remedy, and the justices apparently had heard. First, in 1992, in Freeman v. Pitts, the Supreme
Court spelled out clear criteria that would allow most districts to come out from under their prior
desegregation orders.161
Next, in 1995, in Missouri v. Jenkins, the Court made it extremely
difficult to achieve desegregation in the face of white flight, even in states that had long engaged
in overt racial discrimination.162
Because Milliken had put an end to forced inter-district bussing,
courts and schools turned instead to incentives to draw white students back, relying largely on
“magnet” schools with sufficiently attractive features that it was worth the commute and racial
mixing to get them. In Kansas City, Missouri, the school board and the district court had agreed
to a remarkable series of improvements to the schools, including computers (this was the early
1990s), a planetarium, a Model United Nations meeting room, and the like. 163
But funding all
this required tax increases, and at this point the Supreme Court stepped in to put a stop to it.
Recall that in Bakke Justice Powell had stated that remediation was permissible only if the
government was at fault for discrimination. In Jenkins, the justices concluded a government body
could not be held responsible for white flight, so such remediation to achieve integration was
inappropriate. As Justice O’Connor explained in her concurring opinion:
This case, like other school desegregation litigation, is concerned with ‘the
elimination of the discrimination inherent in the dual school systems, not with
myriad factors of human existence which can cause discrimination in a
multitude of ways on racial, religious, or ethnic grounds.” (citing Swann).
Those myriad factors are not readily corrected by judicial intervention, but are
best addressed by the representative branches.164
Which bring us to the more recent Parents Involved case, the one in which the legacy of
Brown was so contested.165
Parents Involved an attempt by the Seattle and Louisville school
districts to maintain racially integrated schools in the face of demographic changes, including
residential housing segregation. The conservative justices held that the plans were unlawful.
Echoing Jenkins, Chief Justice Roberts stated in his plurality opinion that using race was
160
Milliken v. Bradley, 418 U.S. 717, 744–45(“[A]n interdistrict remedy might be in order where the racially
discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district
lines have been deliberately drawn on the basis of race.”).
161
503 U.S. 467 (1992).
162
515 U.S. 70 (1995).
163
Id. at 79–80.
164
Id. at 112.
165
Parents Involved in Comm. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).
70
impermissible because there had been no fining of a constitutional violation by Seattle that was
being remediated and that constitutional violations in Louisville has already been remediated
because its desegregation decree had already been lifted. 166
And Bakke’s diversity rationale, he
further stated, was inapt to primary and secondary education.167
And while there is plenty of evidence to suggest the ruling in Parents Involved was
consistent with a public still fatigued of bussing, that is not necessarily true, for reasons Justice
Breyer stated in emotional terms at the end of his dissent:
Finally, what of the hope and promise of Brown? For much of this Nation’s
history, the races remained divided. It was not long ago that people of
different races drank from separate fountains, rode on separate buses, and
studied in separate schools. In this Court’s finest hour, Brown v. Board of
Education challenged this history . . .
Not everyone welcomed this Court’s decision in Brown. Three years after that
decision was handed down, the Governor of Arkansas ordered state militia to
block the doors of a white schoolhouse so that black children could not enter.
The President of the United States dispatched the 101st Airborne Division to
Little Rock, Arkansas, and federal troops were needed to enforce a
desegregation decree. Today, almost 50 years later, attitudes toward race in
this Nation have changed dramatically. Many parents, white and black alike,
want their children to attend schools with children of different races. Indeed,
the very school districts that once spurned integration now strive for it. . . .
[T]hey have asked us not to take from their hands the instruments they have
used to rid their schools of racial segregation, instruments that they believe
are needed to overcome the problems of cities divided by race and poverty.
The plurality would decline their modest request.168
Matters were more confused still when it came to affirmative action in higher education,
both in the popular political realm, and – perhaps unsurprisingly – on the Court itself. In 1994, in
Adarand v. Peña, the Supreme Court applied strict scrutiny to a federal government affirmative
action plan regarding federal contract awards.169
Prior to Adarand, it had seemed like if the
Congress itself was implementing an affirmative action plan, that might get more respect from
the courts. After all, the Fourteenth Amendment does bestow upon Congress the power to
enforce the Equal Protection Clause and the Supreme Court had heretofore been deferential
about Congress’s choices in that regard.170
But once again, Justice O’Connor held for the Court
in Adarand that even congressional affirmative action plans must be judged by strict scrutiny.
(She went to some pains, however, to point out that close judicial review was not necessarily
166
Id. at 712–16.
167
Id. at 725.
168
Id. at 867–868.
169
515 U.S. 200, 226 (1995).
170
See Metro Broadcasting v. FCC, 497 U.S. 547, 564 (1990) (applying intermediate scrutiny to benign federal
racial classifications).
71
“fatal in fact” to the any law’s being upheld existence, something that soon enough became
important.)
Following the ruling in Adarand, Republicans thought they had encountered a political
goldmine, only to learn once again that race is American politics’ third rail. William Kristol
deemed affirmative action “a winner for us any way you look at it;” and some Republicans
rushed to ban affirmative action altogether.171
Even Bill Clinton was prepared to back away. But
the demographics in the country were changing: the contest over the influx of Latino voters left
everyone uncertain where public opinion on the hot-button issue stood.172
Bill Clinton ultimately
suggested a fix to existing affirmative action plans, saying “mend it don’t end it,” which gained
overwhelming Senate support.173
In 1996 Bob Dole, running for President, again suggested
ending all affirmative action, but again got nowhere in Congress. His co-sponsor accused the
Republican leaders of “spinning around like a weather vane in a hurricane on this issue.”174
Republicans were right to hesitate, for when it came to affirmative action the country was
seriously conflicted. Then and now, how the issue is phrased seems to matter a lot. Voters tend to
be for “affirmative action” but against “racial preferences.” Thus, voters approved referenda in
California and Washington to end “preferences” but voted down Houston’s referendum on
“affirmative action.”175
Polling results also seem to turn on such differences in the way questions
are worded.176
The Supreme Court returned to affirmative action for the first time since Bakke, in 2003,
in two cases from the University of Michigan. One case (Gratz) came from the college, which
employed racial criteria quite explicitly as a deciding factor for admissions; the other (Grutter)
involved a more subtle law school plan, which counted race as just one factor in an overall
assessment of each individual applicant.177
The cases attracted high-powered friend of the court
briefs from Fortune 500 CEOs and former military leaders speaking to the necessity of
affirmative action.178
The justices split 5-4 in both cases, with Justice O’Connor in the majority
in both cases, but switching sides as to each. The result was that in Gratz the college plan was
struck, while in Grutter the law school’s plan was upheld.179
The legal conclusion was that race
could be used in university admissions, if not too much and not too obviously. Justice O’Connor
171
TERRY H. ANDERSON, THE PURSUIT OF FAIRNESS 233--34(2004); Republican Party Platform of 1992, adopted
Aug. 17, 1992, http://presidency.ucsb.edu/showplatforms.php?platindex=R1992, at 23 (“[W]e reject efforts to
replace equal rights with quotas or other preferential treatment.”).
172
FRIEDMAN, supra note 5, at 326–27.
173
William J. Clinton, “Remarks on Affirmative Action at the National Archives and Records Administration,” July
19, 1995, in PUBLIC PAPERS OF THE PRESIDENTS OF THE UNITED STATES: WILLIAM J. CLINTON, 1995, bk. 2, at 1114
(1996).
174
LYDIA CHAVEZ, THE COLOR BIND: THE CAMPAIGN TO END AFFIRMATIVE ACTION 109 (1998).
175
FRIEDMAN, supra note 5, at 361.
176
See, e.g., Public Backs Affirmative Action, But Not Minority Preferences, PEW RESEARCH CENTER (June 2, 2009),
http://www.pewresearch.org/2009/06/02/public-backs-affirmative-action-but-not-minority-preferences/.
177
Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003).
178
Brief of General Motors Corporation as Amicus Curiae in Support of Respondents, Gratz v. Bollinger, 539 U.S.
244 (2003) (Nos. 02-241, 02-516), 2003 WL 399096; Brief of 65 Leading American Businesses as Amici Curiae
Supporting Respondent, Grutter v. Bollinger, 539 U.S. 306 (2003) (Nos. 02-241, 02-516) 2001 WL 34624918;
Consolidated Brief of Lt. Gen. Julius W. Becton, Jr., et al. as Amici Curiae Supporting Respondent, 539 U.S. 306
(2003) (Nos. 02-241, 02-516), 2003 WL 1787554.
179
Grutter, 539 U.S. at 328; Gratz, 539 U.S. at 275–76.
72
attracted derision for suggesting affirmative in the Grutter opinion that affirmative action plans
like the University of Michigan Law School’s were fine – for now – but that in some period, say
the next twenty-five years, they should be phased out.180
The split decision in Grutter and Gratz seemed to reflect where the country was at on the
issue. That’s certainly how the media and pollsters saw it. The Washington Post concluded
Justice O’Connor “has a knack for landing pretty near the spot where the public uneasily
settles.”181
Ken Starr, a conservative lawyer who had prosecuted President Bill Clinton in the
Whitewater and Monica Lewinsky scandals, told CNN “the court, as we saw, is very deeply
ambivalent about affirmative action, just as the country as a whole is.”182
The director of the Pew
Research Center commented on “how closely the court resembled public sentiment.”183
Not even ten years into Justice O’Connor’s twenty-five year window, however, many
believed the Supreme Court was poised yet again to eliminate affirmative action – this time in a
case from the Texas, Fisher v. University of Texas at Austin.184
After the federal courts had
struck down a prior affirmative action plan at UT-Austin, the state – at the urging of Governor
George W. Bush – adopted a “10% plan,” by which the top 10% of graduating seniors at any
high school in Texas meeting certain requirements would be admitted. 185
Bush, coming from a
southern border state was savvy about the importance of the Latino vote and generally supported
affirmative action.186
He filed a brief in the Michigan cases opposing the plans there but touting
his 10% plan as a race-neutral alternative.187
Bush said, when his brief was filed, “I strongly
support diversity of all kinds, including racial diversity in higher education.”188
But even with the
10% plan, UT-Austin still felt minorities were under-represented in its classrooms, and after
following Grutter had adopted race-conscious measure.
But then, the Supreme Court punted. Rather than any bold pronouncement, in Fisher, the
justices simply sent the case back to the lower courts, saying the judges there had not followed
the instructions from Grutter clearly enough. The Court was practically unanimous.189
Brown’s legacy thus remains contested. True, the colorblindness rationale has triumphed
over the subordination argument – at least for now. Yet, note the irony that in some ways we
have returned to a pre-Brown distinction between graduate (and undergraduate) schools on the
one hand and primary and secondary education on the other. While the Court has been very strict
180
Grutter, 539 U.S. at 343 (“We expect that 25 years from now, the use of racial preferences will no longer be
necessary to further the interest approved today.”).
181
David Von Drehle, Court Mirrors Public Opinion, WASH. POST, June 24, 2003 at A1.
182
Late Edition with Wolf Blitzer, CNN, June 29, 2003.
183
Von Drehle, supra note 54.
184
570 U.S. __, 133 S. Ct. 2411 (2013).
185
Patrick Healy, Texas Plan for College Diversity Draws Fire, BOSTON GLOBE, Aug. 22, 2000 at A1.
186
See TOM HAMBURGER AND PETER WALLSTEN, ONE PARTY COUNTRY: THE REPUBLICAN PLAN FOR DOMINANCE
IN THE TWENTY-FIRST CENTURY 55 (2006) .(“No Republican leader in the years after 1992 did more than George
and Jeb Bush to turn the GOP around on the issue of race.”).
187
Brief for the United States as Amicus Curiae Supporting Petitioner, Gratz v. Bollinger, 539 U.S. 244 (2003) (No.
02-516), at 17.
188
Remarks on the Affirmative Action Case, Jan. 15, 2003, in PUBLIC PAPERS OF THE PRESIDENTS OF THE UNITED
STATES: GEORGE W. BUSH, 2003, bk. 1 (2007), 56.
189
Justice Kagan did not participate, and Justice Ginsburg alone dissented.
73
about refusing to allow the consideration of race in primary and secondary pupil assignment,
adhering to the colorblindness rationale, it has left more room for considering the nonsubordinating
use of race, albeit disguised somewhat, in undergraduate and graduate admissions.
Matters are more complicated still, because the deciding vote on the Court at the moment
is Anthony Kennedy, and his views are decidedly, well, mixed. He wrote the opinion in Fisher.
Referring very deliberately to Justice Powell’s decision in Bakke, Justice Kennedy stressed that it
is “irrelevant that a system of racial preferences in admissions may seem benign,” and
emphasized that judicial scrutiny of any race-based classification must be strict. 190
This has been
a constant view of his, but even yet he touted the virtues of a “diverse student body,” which
“serves values beyond race alone, including enhanced classroom dialogue and the lessening of
racial isolation and stereotypes.”191
In Parents Involved, though, Justice Kennedy also split the baby – and technically here
too his is the deciding vote. Standing alone, he poked fingers at both sides of the Court. While he
joined the Chief Justice and provided the fifth vote to strike down Seattle’s and Louisville’s
pupil assignment rules, he criticized the Chief Justice for “an all-too-unyielding insistence that
race cannot be a factor in instances when, in my view, it may be taken into account:
The plurality opinion is too dismissive of the legitimate interest government
has in ensuring all people have equal opportunity regardless s of their race.
The plurality’s postulate that “[t]he way to stop discrimination on the basis of
race is to stop discrimination on the basis of race,” is not sufficient to decide
these cases. Fifty years of experience since Brown v. Board of Education
should teach us that the problem defies so easy a solution. School districts can
seek to reach Brown’s objective of equal educational opportunity. The
plurality opinion is at least open to the interpretation that the Constitution
requires school districts to ignore the problem of de facto resegregation in
schooling. I cannot endorse that conclusion. To the extent the plurality
opinion suggests the Constitution mandates that state and local authorities
must accept the status quo of racial isolation in schools, it is, in my view,
profoundly mistaken.192
Yet, Justice Kennedy was even harder on the dissenters, emphasizing that strict scrutiny
was the proper standard under the precedents and that such scrutiny must indeed be strict.193
Just
as the Chief Justice was wrong to believe simply ending race discrimination was the answer:
“The idea that if race is the problem, race is the instrument with which to
solve it cannot be accepted as an analytical leap forward. And if this is a
frustrating duality of the Equal Protection Clause it simply reflects the duality
190
Fisher, 133 S. Ct. at 2417.
191
Id. at 2418.
192
Parents Involved, 551 U.S. at 787–88.
193
See id. at 790–91 (“The dissent's reliance on this Court's precedents to justify the explicit, sweeping, classwide
racial classifications at issue here is a misreading of our authorities that, it appears to me, tends to undermine wellaccepted
principles needed to guard our freedom.”).
74
of our history and our attempts to promote freedom in a world that sometimes
seems to be set against it.”194
How exactly Justice Kennedy squares that circle is a fine question. His answer seems to
be that school boards “may pursue the goal of bringing together students of diverse backgrounds
and races through other means.” These include “strategic site selection of new schools; drawing
attendance zones with general recognition of the demographics of neighborhoods; . . . recruiting
students and faculty in a targeted fashion” and the like.195
One wonders how exactly these are not
race-based approaches, and one also wonders if these approaches can work – and if not, whether
Justice Kennedy would allow even more explicit uses of race. Indeed, one cannot help but
wonder if the Court’s view is that using race is fine so long as no one can notice very much. Yet
again, a country and court dancing around America’s never-ending dilemma.
The battle is hardly over; this Term the justices will take up the latest foray, a Michigan
referendum that prohibits the use of discrimination on the basis of race, sex, color, ethnicity or
national origin in “public employment, public education, or public contracting.”196
The
referendum was a clear response to the Michigan decisions, and the federal appeals court struck
it down, at least as applied to public education.197
The court was badly fractured, and many
opinions were written. By the time you read this, we may have a better idea of how the justices
are likely to rule.
FOR DISCUSSION
1. Assume for the sake of argument that there is some relationship between public opinion and
judicial outcomes. Do you have any thoughts about which way the causal arrow moves?
2. Suppose that public opinion influences the justices. Do you have any hypothesis about the
mechanisms that account for this? Why would life tenured judges issue opinions that at least in
some instance seem to mirror public opinion?
3. In Missouri v. Jenkins, Justice O’Connor points to the other branches of government for the
relief of discrimination caused by social forces such as white flight.198
Of course, given the
politics of the day, surely she understood no such relief would be forthcoming. Do you think
similar forces influenced her decision not to allow the use of the taxing power to construct
magnet schools and improve schools in racially segregated areas?
194
Id. at 797.
195
Id. at 789.
196
Coalition to Defend Affirmative Action v. Schuette, No. 12-682
197
Coalition to Defend Affirmative Action v. Schuette, 701 F.3d 466, 470 (6th Cir. 2012).
198
Jenkins, 515 U.S. at 112 (“This case . . . is concerned with ‘the elimination of the discrimination inherent in the
dual school systems, not with myriad factors of human existence which can cause discrimination in a multitude of
ways on racial, religious, or ethnic grounds.’ Those myriad factors are not readily corrected by judicial intervention,
but are best addressed by the representative branches; time and again, we have recognized the ample authority
legislatures possess to combat racial injustice”) (internal citations omitted).
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* * *
It would be a mistake to come to the end of this chapter focused only on public opinion as
a mechanism for influencing the content of the law and the direction of outcomes. Reflect back
over the various other influences on judging that we have discussed. Now think about the story
of the aftermath of Brown, as it relates to affirmative action in higher education and school
assignment in primary and secondary education. Can you identify any of the other influences we
have discussed in this chapter at work in that story besides public opinion? What are they?
One final question: we told you at the outset that Brown was an unusual case. Have you
developed any intuitions about how the factors we have discussed here might play out in more
mill run judicial decisions?